How to transfer an employee to another position, to another organization or to part-time work on his own initiative

Reasons for requesting a transfer

The Labor Code specifically speaks about whether the employee’s consent to a transfer is required, and in general about transfers.

According to Art. 72.1.”Transfer to another job. Transfer”, the transfer of an employee is allowed only with his voluntary consent.

But this does not contradict the factors prescribed in Article 72.2, parts 2, 3.

Therefore, the initiator is usually the employee himself , who may require relocation in the following cases:

• according to a medical report - deterioration in health does not allow one to cope with job responsibilities or carry them out fully;
• In connection with pregnancy or breastfeeding , women should be freed from heavy physical work and interaction with harmful chemicals. In this case, the procedure is temporary;
• to replace temporarily absent employee. After the return of the absent employee, the transferred employee returns to his previous place (read more about the temporary transfer of an employee here);
• to replace who quit ;
• change in the structural unit to which the employee belongs.

An employee can request a transfer without prior agreement with his superiors only on the basis of a medical report.

Transfer to a lower paid position

Article 72 of the Labor Code determines that transfer is a change in the labor function of an employee of a temporary or permanent nature.

In case of a temporary transfer caused by emergency circumstances specified in the article, or by production necessity, the employer is obliged to maintain for the employee the average level of his income at his previous place.

A permanent transfer may involve a demotion leading to a reduction in income.

Options

Next, we will consider the transfer of an employee to another position at the initiative of the employee, which includes several different options.

Part-time

If an employee needs free time or copes with his duties in less time , then he has the opportunity to switch to a 0.5 rate.

To begin with, the employee writes an application requesting a transfer addressed to the director of the organization.

Sample application for transfer to a part-time job.

If management makes a positive decision, the employee and the employer enter into an additional agreement, which stipulates new working conditions and a different schedule. The document also states:

• operating mode;
• hourly length of the week;
• salary size.

After signing an additional agreement on the transfer of an employee, the manager, based on it, issues an order to change the staffing table.

For a lower paid job

If the procedure for transferring to a lower-level, and at the same time lower-paid position is carried out at the initiative of the employer, then it must have good reasons.

In addition, all employees affected by the changes must be notified of them in advance .

An example of a notice of transfer to a lower-paid position.

So, it is necessary to draw up a new regulation on changes in the production process, which all employees can familiarize themselves with. Those who do not agree with the changes will be fired .

Two months after employees familiarize themselves with the document, they must:

• issue a transfer order;
• make changes to the employment contract;
• make an entry in the work book.

For reduced or part-time work

Unlike a shortened working day, which is indicated in calculations as full-time, with a part-time working day only hours worked are taken into account.

First, an employee application is required. The boss does not have the right to refuse only minor employees and pregnant women; in other cases, the decision remains at his discretion.

Then an addendum to the employment contract is drawn up, where new working conditions are prescribed.

The transfer of an employee to part-time work is completed at the employee’s initiative by issuing an order, which is signed by both parties.

To another employer

In order to correctly transfer an employee to another organization on the employee’s initiative, you must first receive his application for this case, as well as a letter of invitation from the new employer (Article 72.1).

The moving process is carried out as follows:

• the boss writes to the employee a letter of invitation to the employee indicating the new position and the expected date of transfer or a letter of offer to the employer from another company about the transfer of the employee. If the employer does not agree with the relocation, the person can resign from the organization on his own;
• resignation letter;
• drawing up an order (form T-8) to terminate an employment contract based on an application;
• dismissal of an employee from his current position;
• hiring to another company for a pre-agreed position.

An employee hired by transfer does not have to undergo a test for suitability for the position held (probationary period) - Article 70 of the Labor Code.

How to deal with personal income tax for the businessman himself

As you know, individual entrepreneurs determine the composition of expenses in the manner established by Chapter 25 of the Tax Code of the Russian Federation. Based on Article 255 of the Tax Code of the Russian Federation, labor costs include any accruals to employees in cash and (or) in kind, incentive accruals and allowances, compensation accruals related to working hours or working conditions, bonuses and one-time incentive accruals, expenses associated with maintenance of these employees, provided for by the legislation of the Russian Federation, employment agreements (contracts) and (or) collective agreements.

These expenses include, in particular, labor costs during the performance of lower-paid work in cases provided for by the legislation of the Russian Federation. About this - clause 14 of part 2 of article 255 of the Tax Code of the Russian Federation.

Thus, if an employee for medical reasons is transferred to a lower position, the salary for which is lower than the previous one, then the entrepreneur has the right to calculate the tax base for personal income tax to take into account the costs associated with maintaining the employee’s average salary as part of labor costs for the entire period determined for the appropriate case.

Confirmation of consent

The transfer agreement can be, as you saw above, confirmed in two ways .

Firstly , an application requesting a transfer signed by the employee, if he was the initiator of the entire procedure.

Secondly , a signature on a document drawn up to notify workers in advance of changes in working conditions if the transfer occurs due to a reduction in costs or staff.

In addition, if we are talking about transferring an employee to another company, according to an invitation letter, then consent can be formalized in the form of an inscription on this letter: “I agree to the transfer,” indicating the date of acquaintance and the personal signature of the employee himself. Or the employee expresses his consent to the transfer in writing.

Sample of employee consent to transfer to another employer.

In addition, an employer who receives an invitation to transfer an employee may send a notice to the employee asking him to indicate his decision.

Reasons

There can be many reasons for such an action on the part of the employer. Sometimes even dissatisfaction can serve to make such a decision. But is it legal?

To do this, it is worth considering the main reasons for descending the career ladder:

1. Replacing an employee during his absence . The reasons may be: a worker of a lower position leaving on maternity leave, on vacation, on sick leave (Article 72 of the Labor Code of the Russian Federation).
2. As a result of the suspension of the activity in which the employee works. If for some reason this or that area in the organization is in a state of downtime, then the employer has the right to transfer the employee to a lower position (Article 72 of the Labor Code of the Russian Federation).
3. Refusal of employees to perform labor duties in this position . If additional load appears, the worker may refuse to perform them. In this case, the director offers another position in writing (Article 74 of the Labor Code of the Russian Federation).
4. Staff reduction (Article 81 of the Labor Code of the Russian Federation).
5. Poor certification results . Some organizations periodically conduct tests on the professional suitability of employees in the form of exams and testing. If an employee does not score the required number of points, the employer has the right to demote him.
6. Medical conditions limiting the employee’s activities. In case of contraindications based on a medical report, management offers the subordinate a lower job position that does not have contraindications due to health reasons. At the same time, the manager gives the employee guarantees: maintaining the average salary. If a new workplace involves a transfer to another branch, but the subordinate refuses, then the employment contract is terminated (Article 77 of the Labor Code of the Russian Federation, Article 73 of the Labor Code of the Russian Federation).
7. Adverse factors affecting the health of a pregnant woman (Article 254 of the Labor Code of the Russian Federation).

There is another reason for job reduction - unlawful performance of job duties . These measures apply to employees:

• Investigative Committee (Federal Law No. 403, Article 28);
• police (Federal Law No. 342, Art. 15);
• prosecutors (Federal Law No. 2202-1, Article 47.1).

The most common cases of disciplinary action against military and police officers are: abuse of power, failure to fulfill official duties.

List of required documents

Regardless of the method of movement of the employee, information about this should be displayed in the following documents:

• transfer order drawn up on the basis of the application;
• employment contract;
• work book;
• employee's personal card;
• staffing table;
• report card

With proper registration and sufficient justification, transfer to another position at the initiative of the employee occurs quite smoothly. The main thing is to follow the above advice and not violate the provisions of the Labor Code of the Russian Federation.

Relocation of an employee without an employer

An employer that has branches (representative offices) in different cities has the right to make an offer to an employee to transfer to another location if his services are required there. There are two positions regarding the formalization of this personnel reshuffle:

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