By general rule the employer is not authorized to arbitrarily unilaterally change the terms of the employment contract. An employee has the right to perform only a pre-agreed labor function, receive an established salary and come to work at an agreed place - structural subdivision: department, section, workshop.

An employee can be transferred to another job only with his consent, except in certain cases. And such a transfer, at the discretion of management, must be justified, and the procedure for its execution must be followed in detail.

What to do if the employer transferred to another job without the employee’s consent or fraudulently, thereby fundamentally worsening the working conditions agreed upon at the beginning? Our answer: appeal the transfer with the help of a competent lawyer.

Trdat Group labor dispute specialists will provide assistance to illegally transferred employees legal assistance in order to restore previous working conditions and recover lost income.

Translation: What is considered legal?

Transfer is usually called any important change in working conditions. For convenience, we will conditionally differentiate the types of transfers based on the employee’s consent.

Thus, with the consent of the mercenary, you can change the original terms of the employment contract in the following forms:

✔ Permanently or temporarily change the job function, position or place of work - structural unit, if it is significant and was indicated in the contract, as well as offer to move to another location when the organization moves.

In this case, an instruction to move to another desktop, computer or machine is called a transfer, is not regarded as a transfer and is not considered a change in the terms of the contract, if this does not change the work function itself;

✔ Replace an absent employee;

✔ Change the work performed to another function if this is necessary due to the employee’s health condition.

Without the employee's consent, the employer may do the following:

• To prevent or eliminate a natural or man-made disaster, accident, or epidemic, entrust the employee with other work for a period of up to one month;
• The same for a similar period - due to justified downtime in production;
• Due to organizational or technological reasons, for example during implementation new technology, excluding manual labor offer another equivalent position. On this basis, you can change any conditions except labor function;
• When the owner of the property changes, the manager, deputy and chief accountant may be dismissed.

What may be violations when transferring an employee?

• The transfer period to which the employee agreed and which is established by law has been violated;
• The employee was not asked for written consent;
• A transfer to another organization has been formalized, where the economic and production working conditions are significantly worse;
• The new job is contraindicated for the employee due to health reasons, which was ignored by the employer;
• For temporary transfers, the employer paid a salary lower than the average earnings for the previous job;
• The translation procedure has not been followed when technology and organization change. Namely: management is obliged to notify the staff about this in writing two months in advance. If the employee does not agree to the new conditions, he is offered other vacancies in the same organization, including those requiring lower qualifications and a lower salary. If it was not possible to find another job, dismissal follows according to the relevant article;
• A fictitious transfer was organized. That is, the change occurred only according to documents, but in reality the function, place and subordination remained the same;
• Changes in the terms of the contract led to a decrease in wages, in particular due to arbitrary transfer to lower paid position;
• The employer changed the employee workplace, but actually transferred to another structural unit to perform other work.

For visual illustration We suggest you familiarize yourself with three examples of translation violations court cases, won by workers:

1. The St. Petersburg City Court declared it illegal to reduce wages by 2.3 times and change the work schedule of the plaintiff, an accountant of the HOA. The changes were made by the board of the partnership due to the recognition of the elections of the previous chairman as illegal, which was regarded as changes of an organizational nature. The court recognized the position of the HOA regarding the nature of the changes as incorrect and recovered in favor of the former accountant the average salary at the old salary rate (case No. 33-6004/2017 dated 04/20/2017);
2. The St. Petersburg City Court declared illegal the transfer of the plaintiff, a merchandiser, without his consent and notification from one building of a chain supermarket to another (another store), since the employee’s workplace was specifically designated by the employment contract. The defendant was charged the difference in salary for the period of forced absence from work (case No. 2-3852/2014 dated January 19, 2015);
3. The Moscow Regional Court recovered from the plant in favor of the plaintiff - a senior operator - lost cash income due to an illegal transfer in the form of the difference between 2/3 of tariff rate and 2/3 of the average wages during a downtime of five months. The employee proved in court that the downtime happened solely due to the fault of management, and not for independent reasons of an economic or technical nature, as required by law for transferring an employee to another position (case No. 33-25209/2016 dated September 14, 2016).

What should I do if I understand that I was transferred illegally?

Three types of protection are available to an employee whose rights have been violated: a complaint to the labor inspectorate with subsequent verification by this body of the legality of the transfer; appeal within the enterprise to the labor dispute commission with further analysis of the transfer; lawsuit.

In situations of illegal transfer to another position without the employee’s consent, we strongly advise you to transfer all powers to choose a method of defense and behavior strategy to an experienced lawyer, and to exclude any personal initiative.

The institution of translation in labor law is often recognized as one of the most complex, and workers usually cannot independently understand the stated legal norms, interpret the rules correctly. All this leads to ineffective protection of rights and further aggravation of the situation at work.

Disputes regarding job transfers involving an employment lawyer are more likely to be won.

Our assistance to employees

We offer:

• Challenging the translation on any grounds;
• Recovery of average earnings from the enterprise in the event of a legal refusal to carry out translation work;
• Claim for reinstatement upon dismissal under Art. 77 Labor Code of the Russian Federation.

Our services include the following:

1. Initial oral consultation with the employee who contacts us, including analysis of the situation, understanding the client’s goals, choosing a method of defense, reviewing available documents;
2. Negotiations with the employer, communication of the employee’s position, proposal of a peace agreement on terms that suit everyone - strictly at the request of our client;
3. Preparation of the text of an application to a court or commission, selection of the necessary evidence, preliminary work with witnesses;
4. Attendance at all meetings of the commission or court;
5. Appealing a decision that you are not happy with/preparing a response to the opponent’s complaint;
6. Preparing a complaint to labor inspection, employee representation during inspection;
7. Supervision of enforcement proceedings until the moment of transfer of the awarded money to our client’s account.

The cost of a lawyer’s work depends on the severity of the case and is disclosed at the first consultation. If the legal dispute with the employer is successful, the plaintiff will be compensated for expenses legal services at the expense of the defendant.

In some situations, the manager understands that the appropriate solution is to transfer the employee to a position below the one in which he currently works. Let's figure out whether it is possible to transfer to a lower-paid position without the employee's consent and how to carry out such an action.

What is considered a translation?

Translation refers to cases when one or more parameters from the list are subject to change:

• type of work performed (employee’s job function);
• belonging to a structural unit within the company (transfer is considered only when a specific unit was specified in the contract);
• the area in which the work is performed (both the employee and the employer move).

In this case, it is common practice to obtain the employee’s written consent to the transfer. However, the law provides for cases when it is possible to transfer to another job without the employee’s consent.

The laws of the Russian Federation clearly prohibit a transfer if the new workplace imposes requirements on the employee’s health status that are not met according to the latest medical examination. For example, an employee with hypertension cannot be transferred to work in a hot shop.

Translation based on production needs

The Labor Code of the Russian Federation does not contain the concept of “production necessity”. However, Article 74 of the Labor Code of the Russian Federation allows the transfer of an employee without consent if there is a need to change technology or working conditions. However, this cannot change the employee’s responsibilities. A transfer due to operational necessity without the consent of the employee can be carried out to another structural unit or region.

For example, if there is a reorganization of two companies “Y” and “Z” by merging the second with the first, employee “Z” in the position of shift foreman will be transferred to work at “Y” also in the position of shift foreman. In this case, the employee must be notified of the upcoming transfer at least 2 months in advance.

If he does not approve the transfer, Enterprise Y is obliged to offer him another job. It is also prohibited to transfer an employee to positions that he is unable to perform due to health reasons.

If there is no such work, or the employee does not agree to perform it, the company is obliged to terminate employment with him. employment contract or reduce staffing.

When consent is not required

The Labor Code allows the transfer of an employee without his consent only in circumstances where, during the performance of labor responsibilities there is a threat to his life or health in his previous position. These are situations related to:

• with natural or man-made emergencies.
• industrial accidents.
• earthquakes, floods, fires and other disasters in which there is a high risk of death or loss of health.

A temporary transfer without the employee’s consent is also possible if crisis situations cited:

• to lack of work due to disruption of technological chains (downtime);
• the need to replace employees who have gone on sick leave or are absent for other reasons (for example, due to the inability to arrive at their place of work);
• the need to protect the company's property from damage (for example, an employee can be temporarily transferred to the position of a freight forwarder if it is necessary to urgently remove the company's property from an emergency zone).

All these cases allow a transfer of no more than 30 days with the employee’s immediate return to the position after the reason for the transfer is eliminated. And even in this case, it is best to formalize the employee’s consent to the transfer as a safety net.

An employee has the right to ask the employer to transfer him to another position for various reasons. This may be a health condition or too difficult working conditions. In any case, the transfer must be properly formalized in personnel terms.

Transfer to another position is a temporary or permanent change in an employee’s job function. The transfer may be a change of position or structural unit, or it may be a transfer to another employer or to another location.

Another locality means a locality outside the administrative entity where the employee is currently working. A structural unit is branches, representative offices of the employer, as well as workshops, departments and areas “inside” the enterprise.

The transfer of an employee to another job is carried out on the basis of Art. 72.1 and art. 72. 2 Labor Code of the Russian Federation.

The transfer can be either temporary or permanent, both “within” one employer and to another employer. In any case, the employee must take the initiative by writing a statement. It is written in any form or on the company’s letterhead. The employee must necessarily state his request to be transferred to another position for one reason or another. He can attach evidence to the application that he cannot work in this position.
For example, a certificate from a doctor about his state of health. If the employer agrees with the transfer, then he puts his visa on the application and instructs the HR department to prepare the order. But first, the parties must agree on the terms of the transfer.

The agreement on the terms of the transfer must be drawn up in writing and signed by both parties. In this document you can discuss working conditions, payment, work time and rest time, as well as indicate the reason for the transfer. This agreement will be an additional agreement to the employment contract of this employee.

The transfer order is drawn up according to the unified form T-5 or T-5a. The employee must sign the order. This indicates that he is familiar with this document. Based on this order in the personal card and in his work book make special notes.

An employee may ask to be transferred to another position temporarily, for a certain period. For example, to replace an absent employee. In this case, you also need to write a statement.

You also need to draw up an additional agreement to the employment contract. But if, after the expiration of the specified period, the employee’s previous job was not provided, and he continues to work in a temporary position, the agreement loses its temporary nature and becomes permanent. The period of temporary transfer at the initiative of the employee is no more than 1 year.

But there are cases when an employee can demand from the employer a transfer to another position. This:

• danger to the health and life of an employee;
• health status. For example, a woman works with paint and varnish materials. If she becomes pregnant, she has the right to demand that the employer transfer her to another position. She must confirm her request with a certificate from the medical institution where she is registered;
• a woman has a child under 1.5 years of age.

When transferring to another position on these grounds, the employer must provide the employee with wages not lower than the average for the previous position.
Otherwise, it will be a violation labor rights employee. He has the right to write a complaint to the labor inspectorate.

Can a manager hire an employee for one position and then transfer the same employee to another position with a lower salary? How to arrange this correctly? The transfer of an employee is due to the fact that his qualifications do not correspond to the position held.

According to part one of Art. 72.1 of the Labor Code of the Russian Federation, transfer to another job is a permanent or temporary change in the labor function of the employee and (or) the structural unit in which the employee works (if the structural unit was specified in the employment contract), while continuing to work for the same employer, as well as transfer to work in another location with an employer. Transfer to another job is permitted only with the written consent of the employee, except for the cases provided for in parts two and three of Art. 72.2 Labor Code of the Russian Federation.

An employee may also be transferred to a lower-paid job. According to part four of Art. 72.1 of the Labor Code of the Russian Federation, it is not allowed to transfer an employee to a job that is contraindicated for him for health reasons. As we understand from the question, we are talking about transferring to another permanent job.

Labor legislation contains a requirement that earnings correspond to new job average earnings from previous work only for cases of temporary transfer, the need for which is caused by emergency circumstances (parts two to four of Article 72.2 of the Labor Code of the Russian Federation). In all other cases, remuneration is made according to the work performed (part one of Article 132 of the Labor Code of the Russian Federation). Thus, it is possible to transfer an employee to “another position with a lower salary” if he agrees to this.

The transfer of an employee to another job is formalized, as a rule, by an additional agreement to the employment contract, which stipulates all changes made. The agreement must indicate new position(profession, specialty, specific type of work assigned), as well as the date of transfer. Based on the agreement, the employer issues an order (instruction) on the transfer according to the unified form N T-5, approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 N 1.

If the initiator of the transfer is the employer, then by offering a lower-paid position, he can explain to the employee the reason for the change in job function. However, the employer has no right to insist on permanent translation. An employee cannot be forced to sign an agreement to transfer to another job. If an employee does not want to move to a lower paid position, then labor Relations continue without change.

At the same time, if the employee is not suitable for the position held or the work performed due to insufficient qualifications, the employer has the right to terminate the employment contract with such an employee under clause 3 of part one of Art. 81 Labor Code of the Russian Federation. In this case, the employee’s inadequacy for the position held or the work performed due to insufficient qualifications must be confirmed by certification results.

In accordance with part three of Art. 81 of the Labor Code of the Russian Federation on this basis is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (as vacant position or a job that corresponds to the employee’s qualifications, as well as a vacant lower position or lower paid job) that the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

Prepared answer:
Expert of the Legal Consulting Service GARANT
Komarova Victoria

Checked the answer:
Reviewer of the Legal Consulting Service GARANT
Mikhailov Ivan
Company "Garant", Moscow

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service. For getting detailed information about the service, please contact your service manager.

An employee of an enterprise is subject to the rules established by the management and legislation of the Russian Federation. Sometimes an employer obliges an employee to temporarily change his job to replace another employee or perform increased volumes of work. Employees should know when these requests are reasonable and not subject to challenge, and when the proposed conditions are illegal (as is the case with recalls from work-related leave).

Transfer of an employee to another job without his consent under the Labor Code

The Labor Code of the Russian Federation regulates the possibility of transferring employees to another job temporarily or permanently. Most of the conditions specified in the Labor Code of the Russian Federation require written consent from the employee. But cases are indicated in which a transfer to another place should not be agreed upon.

Transfers can be justified on various grounds, for example:

• Replacement of a temporarily departing employee.
• By necessity.
• Environmental and natural disasters.
• Man-made accidents.
• Changing the type of activity of the enterprise.

In any case, the employee must be notified of the decision made by management and has the right to disagree with it. When the employee's mandatory consent is not required to be provided, such non-consent may result in temporary suspension from work.

Is it possible to transfer to another job without the employee’s consent?

In certain cases specified by law, it is allowed to move an employee to another place, but this measure must be limited in time and the following conditions must be met:

• Strict adherence to permitted time periods.
• Maintaining the employee’s salary level is not lower than average.
• Do not transfer an employee to a place of work that is not permitted for him according to a doctor’s examination.

The employer has the right to transfer the employee to another place, with a deterioration in his labor schedule or change working conditions in cases specified in Art. 72.2 for one month and no more.
When transferring to a similar job, you should adhere to time periods equal to one year. The end of this period should be marked by the candidate’s relocation back, and if such a request is not received from him, or the employer cannot offer him a former vacancy, the temporary position is exhausted and becomes a permanent place of work.

In what cases can an employee be transferred to another job without his consent?

Cases in which the transfer takes place without the consent of the hired person are listed in the Labor Code of the Russian Federation.

This list includes:

• The provided workplace is located structurally and geographically in the same place. Only the division, department, address changes. Working conditions and pay remain unchanged. There are significant changes in job responsibilities or payment requires the mandatory consent of the employee. This transfer is issued on a temporary or permanent basis.
• Does not require consent in emergency situations. But such a transfer has a strict duration of one month.
• To prevent damage to valuable property or to temporarily replace an employee, but with the condition that this work will not be less qualified and will last no more than a month.

Temporary transfer to another job without the employee’s consent

A temporary transfer is often issued without the consent of the employee if it is necessary to replace an absent person in another structural department. The hired person is reassigned to work within the organization, provided that all main responsibilities and functions remain the same, with the same salary. You can transfer to another place for up to a year. If an employee is transferred to replace another person during his absence, provided that his place is retained, the transfer period lasts until the replacement leaves.

How to transfer an employee to another job without his consent - procedure

To transfer an employee to another place, it is necessary:

• Determine the requirements that must be met by the hired person who will fill the specified position temporarily or permanently. This includes the required health status, terms, and salary.
• Provide conditions under which it is impossible to transfer a person to another place.
• Notify the selected candidate orally.
• Place an order.
• Familiarize the candidate with the order.

The only insurmountable obstacle to moving to a new place can be health contraindications, officially recorded. Therefore, when movements are permitted by law, the selected candidate often cannot refuse the offered place.