Relocation of an employee in accordance with the Labor Code of the Russian Federation

Transfer to another job: concept

The need to transfer an employee from one place of work to another arises quite often. Most often this is due to changes in staffing. In other words, a transfer to another job is an employee changing his or her job functions, which entails a change in the place and conditions of work. In this case, the employee remains working for the same employer.

Transferring an employee to another job implies that not only his position and responsibilities will change, but also the structural unit. A person can easily be transferred to work in another department or branch. In addition, transfer to work in another area is possible. In this case, the transfer is carried out together with the employer.

Kinds

Movement of an employee from one workplace to another . Often, in small companies such transfers are not formalized at all. A person moves to another table or continues to work in another office, and rarely any friction arises with the management of the organization. As for large enterprises and factories, this type of movement may be associated with work in another building, about which the employee must be informed in advance.

Moving to another structural unit . A structural unit can be a department, department, service, or branch of an organization. As you know, such structures are not always located at the same address. In order for an employee’s transfer to another organizational unit, or the so-called “job transfer,” to remain a transfer , such a unit must be located in the same area. By “terrain” we mean the entire territory within the boundaries of a populated area.

A populated area can be a city, an urban settlement, a rural settlement (village, village, hamlet, village). Districts and regions are administrative-territorial entities, not populated areas.

An employee is assigned to work on another unit, mechanism, equipment, and so on . For example, the driver of the organization is assigned a new car, in which he will deliver passengers or cargo in the same way as with the old car. His work function will not change in any way.

The main thing is that such a change in the tool of labor does not contradict the list of job responsibilities established by the employment contract and job description.

In the employment contract, the parties can indicate the structural unit or workplace where the employee will work. In the event that these conditions change, it will not be a displacement, but a transfer.

What is movement

Another opportunity to transfer an employee to another place of work is relocation. It differs from a transfer in that when an employee moves, the terms of the employment contract do not change. That is, during the move, the employee receives a new job in the organization, but cannot be transferred to work in another location. In this case, no changes are made to the employment contract, since the essential working conditions do not change.

It is important to understand that each employee is obliged to accept the employer’s decision to relocate and will obey it. Naturally, if all the reasons for this are absolutely legal. The legislation of the Russian Federation allows managers to independently make personnel changes if this is necessary to improve productivity.

If the employee refuses to move, he will be forced to bear certain punishment.

Most often, various disciplinary sanctions are used. But employers themselves commit certain violations. For example, relocation actually meant transfer, so the employee’s working conditions change and often not for the better.

It is almost impossible to foresee the actions of an unscrupulous employer, therefore labor legislation is on the side of employees. If violations were discovered on the part of the manager during the transfer, the injured party may suspend his or her work activity by notifying the employer in writing.

If no action was taken on his part, then the employee has the right to go to court and, with its help, recover the difference in wages and compensation for moral damage. In addition, in case of illegal transfer, all labor rights of employees are preserved, including the opportunity to return to their old position.

Commentary on Article 72.1 of the Labor Code of the Russian Federation

Refusal to highlight the essential terms of the employment contract made it possible to systematize the norms of Chapter. 12, defining the concept and procedure for changing the terms of an employment contract, including transfers, both permanent and temporary.

Transfer to another job is a permanent or temporary change in job function while continuing to work for the same employer, as well as transfer to another job in another location together with the employer. A change in the structural unit in which the employee works, if it was determined by the employment contract, is also equivalent to a transfer.

A structural unit of an organization should be understood as branches, representative offices, as well as departments, workshops, areas, etc.

However, if an employee believes that his labor rights are violated during the transfer, he has the right to contact the labor dispute resolution authorities. A transfer to another job is formalized by order of the employer, and a corresponding entry is made in the employee’s work book.

When transferring an employee to permanent work in another location, the employer, in accordance with Art. 169 of the Labor Code (see commentary to it) reimburses expenses associated with relocation: the cost of travel for the employee and his family members, the cost of luggage, etc.

The Labor Code does not define the concept of “other locality”. The Plenum of the RF Armed Forces believes that by other locality, courts should understand an area outside the administrative-territorial boundaries of the corresponding locality (see paragraph 16 of the Resolution of the Plenum of the RF Armed Forces dated March 17, 2004 No. 2). When moving to another location together with an organization (enterprise), the transfer occurs without termination of the employment relationship, since the employment contract continues to be valid, but with changes in its conditions regarding the location of the organization (enterprise). The employee’s refusal to be transferred to another location together with the organization (enterprise) is grounds for termination of the employment contract in accordance with clause 9 of Art. 77 Labor Code (see Article 77 Labor Code and commentary to it). Refusal to transfer to another job, if the employer himself does not move to this area, cannot serve as a basis for termination of the employment contract.

In terms of timing, the legislator distinguishes two types of transfers: permanent and temporary. A permanent transfer is possible only with the consent of the employee. As for a temporary transfer, in a number of cases it can be carried out without the consent of the employee (see Parts 2 and 3 of Article 72.2 of the Labor Code and commentary thereto).

The transfer of an employee to another employer is carried out either at the written request of the employee, at the written request of the employee or with his written consent on the basis of an agreement between the former and future employers. An employee invited in writing to permanent work in another organization (enterprise) cannot be refused to conclude an employment contract (see Article 64 of the Labor Code and commentary thereto). Such a transfer is associated with a change in one of the parties to the employment contract, therefore it entails the termination of the employment contract in accordance with clause 5 of Art. 77 Labor Code (see commentary to Article 77).

A transfer to a permanent job in another organization (enterprise) is formalized by order (instruction), and a corresponding entry about dismissal and hiring in the order of transfer is made in the work book.

In a number of cases provided for by labor legislation, the employer is obliged to offer the employee a transfer to another job. Such an obligation arises when staffing is reduced if there is other work available; based on the results of certification, if the employee is recognized as unsuitable for the position held.

The transfer of an employee from one employer should be distinguished from transfer to another job. According to the commented article, relocation should be understood as a change in a workplace, structural unit (workshop, department, site, sector, etc.) located in the same area, mechanism or unit not agreed upon by the parties to the employment contract, if this does not entail a change terms of the employment contract determined by the parties. But if the employment contract stipulated a specific structural unit (workshop, department, site, etc.), then changing them will be considered a transfer and is possible only with the written consent of the employee. However, if, when concluding an employment contract, the structural unit was not specified and the employment contract did not provide for a condition on the workplace, unit (mechanism), the employer has the right to move the employee without his consent, provided that the terms of the employment contract determined by the parties do not change.

An important guarantee when transferring and relocating an employee is the rule prohibiting the transfer and relocation of an employee to a job that is contraindicated for him for health reasons (which must be confirmed by an appropriate medical report).

Types of transfers

The legislator determined that the transfer of an employee at an enterprise can be temporary or permanent. Temporary transfer is permitted in cases provided for by law. First of all, these are various incidents of a man-made or natural nature, under force majeure circumstances, etc. That is, when the situation specifically requires the presence of the employee at another place of work.

The period of temporary transfer cannot exceed one year. This is the maximum period. Temporary transfer is often used for health reasons. For example, an employee may need to be transferred to another position or department at the insistence of doctors.

The duration of such a transfer does not exceed 4 months. If the employer does not have a job suitable for him, then he is obliged to remove the employee from performing labor functions and maintain his place of work. Dismissal in this case is illegal.

Temporary transfer to another job for a period of more than 4 months due to health reasons also implies that the employer is obliged to provide such work. If the employer does not have such an opportunity, then the only option is to fire the employee. Temporary transfer to another job during a woman’s pregnancy is also quite popular. The employer is obliged to transfer pregnant employees to easier and safer work while maintaining their wages.

The second type of transfer is permanent. And, as mentioned above, this could be a change of job function within one organization, work in another area, etc. And not in all these cases, the employee has the right to refuse without any consequences. For example, a transfer between structural departments of one enterprise implies the refusal of the employee. In other cases, if he refuses, he may be fired. And such a dismissal will be absolutely legal.

Types of movement

This procedure is presented in three options:

• moving an employee to another workplace offered within the company where the citizen currently works;
• a specialist moves to another structural unit or branch of the company located in another region or locality;
• the citizen is given the opportunity to work with a new mechanism or unit, which leads to the assignment of slightly different work.

The procedure can be performed even without the permission of the direct employee. Often, relocating an employee is a necessary measure, but the new job must correspond to the specialist’s abilities and experience.

How is transfer to another job and relocation processed?

When transferring, the employee's consent is usually required. And first of all, the employer informs him of the need to move to another department. If the parties nevertheless agree and the offer is accepted, then the employer has the right to expect a corresponding statement from the employee.

It is this document that can be regarded as the employee’s consent to the transfer. Transfer to another job without consent is possible to eliminate various disasters, accidents, etc. But even with this transfer, the employee’s health status, his qualifications, etc. must be taken into account.

The fact is that many people make one mistake - they sign a transfer order and consider this to be the basis for agreeing to changes in their job function. In fact, without a statement, the employee has the right to express his extreme disagreement. And even if, when signing the order, the employee leaves a note that he agrees with the employer’s decision, this will only be a formality.

It is better to write a statement, especially if the transfer is carried out on the initiative of the employee. It is endorsed by the relevant officials and the manager, who then issues an order based on it.

Often, a transfer to another position requires amendments to the employment contract. This can be done in one way - to draw up an agreement on the basis of which these changes will be made. Some employers prefer to terminate the old contract and enter into a new one. But this is wrong, since termination of the contract implies the end of the employment relationship between the parties.

After the agreement has been drawn up and the procedure for making changes is completed, the employer must issue an order. The legislator established a uniform form for this document. The employee has the right to receive a copy of the order in hand. The last step in transferring an employee is to make the appropriate entries in his accounting documents.

The order must contain all the necessary and important information. The position of the employee, his duties, payment, etc. must be indicated. Each type of transfer has its own nuances. For example, if an employee is transferred from one department to another, then the heads of these departments also participate in this procedure.

If it is necessary to move an employee, this can be done without his consent. In this case, the specialty, position and qualifications of the employee must be taken into account. Next, the employer notifies the employee and issues a transfer order.

Procedure for registering employee relocation

Important! The employee relocation notification form from ConsultantPlus is available here

The management of the enterprise has the right to move an employee to another structural unit for production or other reasons, including medical indications. In this case, the conditions for the location of the new place of work in the previous area and the absence of significant changes in the labor function (job responsibilities) must be met:

1. To reshuffle a specialist, the head of the enterprise issues an appropriate order, which defines a new job or structural unit for the employee to perform job duties.
2. The basis for preparing the order is a report (official) note drawn up by the head of the department or structural unit where the specialist works.
3. The document is submitted for consideration to the management of the organization, who affixes a conciliatory resolution, the corresponding date and signature.

If the initiative to move to a new place of work comes from an employee, the latter draws up a written application. The text of the document must contain a request to move the applicant to another unit or to another position, indicating the reasons that necessitated such a procedure. The application must be accompanied by supporting documents or medical reports if there are medical indications for moving the worker.

The application is brought to the attention of the management of the enterprise, which, if agreed, issues an authorization visa, which serves as the basis for preparing the appropriate order for the organization.

The text of the order states:

• position held and name of the department or unit where the applicant works;
• grounds for reshuffle;
• name of the unit or position (according to the staffing table) to which the specialist is transferred.

The specialist must familiarize himself with the prepared order and submit his visa for familiarization.

Important! An additional agreement is not drawn up to the employment agreement with the employee, since there is no change in his main job function. An entry about the employee’s movement is not made in the work book (Article 72 of the Labor Code of the Russian Federation).

Relocation order - how to fill out and where to get a sample

To move an employee, it is enough for the employer to issue an administrative document, for example an order. There is no need to ask the employee for consent. There is no standardized form for a movement order, so it should be issued in free form.

We recommend following the following rules when drawing up an order:

1. Typically, orders are issued on company letterhead (if available at the enterprise). Mandatory details of orders are date, serial number and name.
2. The order consists of a preamble and a main part. The preamble should refer to the document in connection with which the transfer is being made (if any), and also indicate that the terms of the employment contract do not change.
3. The order must be signed by an authorized person: without a power of attorney - by the head of the organization or another employee, if his ability to sign such documents without it is provided for by the charter; or by any person with the appropriate power of attorney.
4. The order should provide a place for the employee in respect of whom the order is issued to mark familiarization.

A sample relocation order can be found on our website.

The order to move an employee must be brought to the attention of the latter against receipt. If he refuses to sign for familiarization, then this should be recorded in the order itself, attesting to the fact of refusal with the signatures of several witnesses.

A worker’s refusal to comply with an order to move can be regarded as a disciplinary offense (determination of the RF Armed Forces dated June 18, 2010 No. 25-B10-3).

Horizontal relocation to another office - what rules are provided by the Labor Code of the Russian Federation?

As can be seen from the above, an action such as changing a structural unit may in one case qualify as a transfer, and in another - as a relocation of an employee .

Many employers have not one, but several offices in the territory of one locality (which may or may not have the status of separate divisions). And when the need arises to move an employee to another office, the following situation is possible: the employee does not agree with the move and refuses to go to work at the new address. The legality of such a refusal depends on specific circumstances:

1. The employment contract specifies the structural unit. This means that translation rules apply. This means that an employee has every right to refuse to go to work in another office, and he cannot be punished for this (decision of the Moscow Regional Court dated June 15, 2010 in case No. 33-11570, determination of the Moscow City Court dated April 16, 2012 in case No. 33-9062).
2. The employment contract does not contain information about the unit. In this case, the employee’s consent to work in another office is not required, and for failure to comply with the order to move, he can be brought to disciplinary liability in accordance with Art. 193 Labor Code of the Russian Federation.

Should the structural unit be indicated in the employment contract?

Thus, the need for the employee’s written consent depends on whether the structural unit is indicated in the employment contract. It will be much more convenient for an employer to make personnel movements if the employment contracts do not include information about the specific department where the employee is to work. It is enough to indicate the locality as the place of work.

But let us recall that, according to para. 2 hours 2 tbsp. 57 of the Labor Code of the Russian Federation, when hiring for a separate unit (for example, a branch or representative office), which is located in a locality other than the parent organization, it is mandatory to indicate the unit and its address in the text of the employment contract. Accordingly, such employees can be transferred to an office at a different address only with their consent.

And, even if the structural unit is not specified in the contract, you need to answer the question: will at least one of its conditions change when moving to another office? For example, a change in work mode or job responsibilities is possible. If the answer to this question is positive, it is impossible to do without obtaining the worker’s consent and concluding an agreement with him.

Thus, the court declared the transfer of an employee to another office illegal, since as a result of this action he had an additional obligation (appeal ruling of the Supreme Court of the Republic of Tatarstan dated September 13, 2012 in case No. 33-9332/2012).

Terms of transfer and relocation

Employers are required to adhere to labor laws. Therefore, they may not require any consent from their employees in order to carry out the move. But this is possible if certain conditions are taken into account. For example, the transfer is carried out without significant changes in working conditions for the employee.

While during a transfer, the employer does not have the right to force the employee to move to another department and take on additional responsibilities. This is against the law. Therefore, workers can only be transferred without consent in case of emergency. These conditions are specified in regulations. In addition, transfer is possible at the initiative of employees.

Most often, the reason for such a transfer is health or pregnancy.

Another reason for the transfer may be staff reduction. In this situation, the manager is obliged to offer the employee another suitable position for him. The transfer is carried out with the consent of the employee. It must be done in writing. Otherwise it is an illegal translation. If an employee refuses another job, the employment contract with him is terminated.

Author of the article

Legal consequences of moving or refusing it

The management of the organization has the right to make any personnel changes aimed at increasing the rational use of property and the efficiency of the enterprise. Each specialist is obliged to comply with the employer’s decision to relocate him.

Refusal to execute a transfer order is equivalent to a disciplinary violation on the part of the worker (Article 192 of the Labor Code of the Russian Federation).

ATTENTION! In case of substitution of concepts and registration under the guise of transfer without the knowledge and consent of the employee of his actual transfer (with a change in working conditions), the management of the organization may face punishment.

If an employee refuses to perform official duties during his illegal reshuffle, in accordance with the law, his labor rights remain unchanged (Article 81, 379 of the Labor Code of the Russian Federation). In this case, the employee cannot be subject to disciplinary liability. The employer also cannot prevent the employee from protecting his own labor rights (Article 380 of the Labor Code of the Russian Federation).

If the transfer is declared illegal by the court, an employee may file a claim for payment of the difference in earnings (for the period of performing other work), for payment for forced absence time, for compensation for moral damage caused to him (Article 236 of the Labor Code of the Russian Federation).

The transfer order was sent by mail, but the employee did not receive it. The court did not regard failure to show up for work as absenteeism and indicated that in this case, dismissal was a disproportionate punishment. The employee was reinstated.

Reasons for performing the procedure

The employer must take into account certain conditions for the employee's movement. During the procedure, it is not allowed for the job responsibilities of the hired specialist or his working conditions to change. If it is planned that a citizen will work in another area, then there must be a production need for this. The employer must take into account the interests of the employee.

The most common reasons for displacement are:

• the emergence of a production need, due to which it is necessary to make certain changes to the staffing table of the enterprise;
• reduction or expansion of the company's activities;
• Professional and even career growth of employees is ensured through the procedure.

The employee selected for travel must comply with the orders of management or other authorized persons with administrative functions.

When you cannot translate without consent

Considering that the Labor Code of the Russian Federation provides an exhaustive list of reasons when an employer can temporarily transfer him to another position without the consent of an employee, in practice situations may arise when it is not possible to exercise this right.

It is impossible to transfer a disabled person to another job without consent.

In particular, the employer does not have the right to unilaterally make a decision on the transfer of the following categories of citizens:

• pregnant women, as well as young mothers, with children under 3 years of age;
• minors;
• disabled people, when such work is contraindicated for health reasons;
• other citizens for whom work in the new conditions is prohibited by medical contraindications.

It is important to note that even if the above-mentioned persons take the initiative and make a decision to eliminate the consequences of emergencies or other force majeure circumstances, the administration does not have the right to involve them in work that may have a detrimental effect on their health.

Other categories of citizens involved in eliminating the consequences of emergency situations simply get acquainted with the order of the head (subject to signature). Refusal to perform such actions may become the basis for initiating disciplinary proceedings and bringing such employee to justice.

In all other cases that are not expressly specified in the law, the transfer procedure will be valid only when the employee gives his own consent. At the same time, the employer has no right to hold him accountable for refusing to do this.

Remember, if in the future the employee becomes ill from a job change, he receives an injury or other disturbance of physiological processes in the body because of this, the administration and specifically the persons who made decisions about the transfer will be held legally responsible for this.

Is it necessary to draw up an additional agreement?

The relocation of an employee does not imply any changes to the clauses and contents of the employment contract. Therefore, there is no need to create an addendum to this document.

If a transfer to work in another region is used as a transfer, then it is advisable to fix such changes in the employment agreement. To do this, an additional contract is drawn up, which states that the specialist’s job functions do not change, but he will have to cope with his job responsibilities in another region.

How to challenge the procedure?

If an employee is sure that the employer is violating his labor rights, since a standard transfer is formalized as a transfer, then he can challenge such a decision of the manager in court. For this, the following rules are taken into account:

• it is advisable to file complaints to the prosecutor’s office and labor inspectorate;
• based on these documents, an audit will be carried out, the main purpose of which is to identify violations on the part of the head of the company;
• if the transfer was indeed formalized as a transfer, then the director of the company will be held accountable, so he will have to pay a significant fine;
• additionally, the employee can file a lawsuit to recover compensation for moral damage from the employer;
• a trial is usually carried out in a situation where the director put moral pressure on an employee, wanting to send him to another region for permanent work in a branch without the consent of the specialist.

To hold an employer accountable or win in court, an employee must be sure that his manager actually violated the requirements of the law.

When is it legal?

The employer does not always have the right to resort to such a step. This is done in several cases:

• a need provoked by circumstances at work;
• replacing another employee (for example, someone who is sick);
• accidents and catastrophes, natural disasters;
• epidemics;
• other incidents involving a threat to human life;
• change of company activity.

Cases when the consent of a subordinate is not necessary are specifically stipulated by law (Article 72.2 of the Labor Code of the Russian Federation). This is usually associated with emergency situations, when the health and lives of people are involved, or there is a threat of damage to valuable property. But sometimes the reason lies in production downtime.

In this case, the subordinate’s consent is not asked only when moving him to another position within the same company, with the same level of earnings. Otherwise, the citizen will be able to defend his rights by contacting the labor inspectorate or even the court.

Salaries do not have to be equal; they can be lower. The lower limit of income in a new place is the average monthly income at your previous job.

Under no circumstances, management has the right to insist that the transferee perform activities that are contraindicated based on the results of a medical report.

Acceptable deadlines

If something extraordinary happens, the head of the institution sends the subordinate to another point, with worse working conditions, for no more than thirty days.

Documentation rules

The relocation of an employee must be accompanied by the preparation of certain documentation by the employer. There must initially be a basis for this. It is represented by a decision of the head of the company or a memo received from a direct employee of the company.

To formalize the process, it is enough to issue an order in free form. When drawing up an order to move an employee, the following points are taken into account:

• if a translation is performed, then a unified T-5 form is required;
• it is allowed to use this form even for movement;
• each company has the right to develop its own unique form, which is then competently approved by management;
• the order may be replaced by a notice of relocation or a special written order drawn up by the director of the company;
• there is no need to draw up any additional agreements to the existing employment agreement;
• Various notes are not entered into the employee’s work book or personal card.

The Labor Code does not have any clear requirements for formalizing the process of movement of a company employee. Therefore, usually this procedure is clearly established by company managers at the local level. Most often, information is included in labor regulations. In this case, you can prevent various conflicts with hired specialists. If employees refuse to move without justified reasons, then penalties may be applied to them as part of disciplinary liability.

Moving to another area

Situation: is it possible to formalize the move of an employee along with the organization to another location as a relocation? The organization was located in Moscow, but moved to the Moscow region.

No you can not.

After relocation, the employee begins working in another location, and the relocation does not include moving to another location. This means that we are talking about translation. It should be taken into account that the transfer of an employee to another location is possible only with his written consent. This procedure is provided for in Part 1 of Article 72.1 of the Labor Code of the Russian Federation and is confirmed in paragraph 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2.

How is the process performed?

The transfer of an employee to another job must be carried out in the correct sequence of actions. This is due to the fact that even with such a simple movement of a hired specialist, some changes are made to the work of personnel. Therefore, the employer takes into account the following points:

• if the office where the specialist works is simply changing, then there is no need to prepare any official documents for this;
• if a citizen is sent to work with new technological equipment, then this procedure is correctly recorded;
• a decision is initially made about the need to move;
• the initiative can come not only from the head of the company, but even from a hired specialist;
• if the employee himself wants to learn how to work with new equipment or move to another branch, then he generates a corresponding memo, which indicates the wishes of the specialist;
• if the employer agrees with the procedure or is its initiator, then he issues an order, for which a free form can be used;
• if the procedure is a transfer, then an order in form T-5 is used;
• the order indicates what type of movement is, what new equipment the specialist will have to work with, and also where exactly he is sent to work.

When performing this process, it is not allowed for the specialist’s job title to change. Relocating an employee without changing the job function is considered a simple process, but some employers discuss this procedure with direct specialists so that in the future no disagreements arise between the two participants in the labor relationship.

Selecting another workshop area

The most common movement is the transfer of a specialist to a new section of the workshop. At the same time, he performs his previous labor function. This is only possible if the employment contract does not clearly state in which specific area of ​​the workshop the citizen should work. Under such conditions, relocation is permitted with appropriate permission from the hired specialist, since such a procedure leads to a change in the terms of the employment agreement.

Most often, the need to move an employee to another workplace is due to his career growth.