Ensuring legality in the removal of an employee from work. Illegal suspension from work. The procedure for dismissal from work at the initiative of the employer

If there are good circumstances or reasons for this, the manager may decide to remove the employee from work. To do this, the removal process must be formalized in a certain way. In the article, we will consider in what order the employer is obliged to carry out suspension from work, as well as the reasons that may lead to suspension.

The employer has the right to carry out temporary suspension from work on the basis of Article 76 of the Labor Code of the Russian Federation. The fact of suspension does not mean that the employment relationship with the employee has been terminated or changed. A temporary suspension is necessary in order not to pay the employee a salary for some time. If there is no fault of the employee, then the removal implies forced downtime, in accordance with which his payment is made (Article 157 of the Labor Code of the Russian Federation). Suspension of an employee is a measure of last resort and can only be applied if there are sufficient grounds for it. The Labor Code (Article 76 of the Labor Code of the Russian Federation) contains a list of such grounds.

At the same time, it must be understood that whether or not to remove an employee from work depends on the circumstances that influence this. In this case, the employer fulfills his obligation, and does not use the right to release the employee from work.

Suspension rules

The decision to remove an employee from his job duties decisions are made not only by company executives, but also by employees of state institutions or judicial bodies authorized to make such decisions.

Depending on what the company is doing, and also due to the circumstances that led to the suspension, the rules applicable to the suspension will differ. Consider the rules that are similar for all situations:

The clarified circumstances that do not allow the employee to work must be documented. As documentary evidence, an act of exemption from mining activities can be drawn up, in which the employee’s data is recorded, as well as the reasons and grounds for removal;
The adopted decision on suspension from work must be drawn up in accordance with the procedure established by law;

Important! The employee has the right to apply to the court to determine the legality of the suspension from work. Therefore, it is important for the employer to comply with all the rules for processing exemption from work.

Grounds for suspension from work

Grounds for dismissal include:

The appearance of an employee in a state of intoxication (alcohol, drugs, etc.);
The employee has not been trained or tested knowledge of labor protection;
The employee did not provide a certificate confirming that he had passed a mandatory medical examination, or a psychiatric examination, if such a certificate is necessary for the performance of labor duties;
Deprivation of a license required to perform a certain type of activity;
Expiration of the special right. A special right is understood as the presence of special knowledge, skills or abilities, which are confirmed by a special document (for example, a driver's license, a license from doctors);
The employee received a decision from the medical board on the deterioration of his health, or a certificate that provides for a restriction on the performance of certain types of labor activity;
The decision of the court or law enforcement agencies.

Suspension from work

The order in which the suspension from work takes place primarily depends on the grounds that led to such an action. Suspension must be confirmed by concrete facts, for this, for each case of suspension, there must be documentary evidence of such a fact.

For example, if an employee appeared in a drunken state, this fact is confirmed by an act made on the basis of an examination of specialists. To do this, they invite medical specialists who confirm this fact. The immediate supervisor of the delinquent employee draws up a memorandum addressed to the head of the company. After reviewing such documents, the manager decides to remove the employee from work and issues an appropriate order.

Important! If, during the examination of the employee by doctors, it turned out that he cannot continue to work in his previous position, or under the same conditions, the decision of a special commission is sent to the head of the company.

The head, having received the conclusion of the commission, must decide on such an employee. If necessary, the employee is released from work, or transferred to another position, if the organization has suitable vacancies. In the event that none of the decisions of the head can be applied, the employee is fired.

However, the removal of different occasions will depend on the specific reason. Suppose the driver's driver's license has expired. In this case, the manager releases him from work for up to two months in order to replace the document. After this period, the employee is again allowed to work.

The procedure for issuing a suspension from work

In order for the employer to legally prevent the employee from performing his labor duties, it is necessary to follow the registration procedure in accordance with the current legislation.

One of important documents is the order of the head to remove the employee, which he issues on the basis of special documents confirming the ability of the employee to perform his duties.

Such documents include:

The conclusion of the medical examination, confirming that the employee was in a state of intoxication (alcohol, drugs, etc.);
The act of dismissal of an employee due to absence required documents, confirming the completion of training and / or successful delivery checking knowledge on labor protection;
An act drawn up to confirm that the employee does not have a medical certificate on the state of health;
A document confirming the impossibility of the employee for health reasons to perform their labor duties;
Other official documents.

The order is made as follows:

Full name of the employee, his position, indicating the structural unit;
The period for which the employee is released;
The procedure for payment for the downtime period, and if the suspension occurs through the fault of the employee, then the employer may not pay for this period. The manager specifies the payment procedure in the order;
The grounds on which the employee is suspended;
Signature of the manager and employee.

With the order of the employee must be familiarized with the signature. If the employee refuses to do this, then an appropriate act is drawn up. An act is drawn up in the presence of at least two witnesses.

Time sheet

The entire period of release from work must be entered in the appropriate notes in the time sheet. If companies have exercised their right and do not maintain such a document, then nothing will be required. If the organization draws up a time sheet, then the following designations are used:

"NB" - in the event that the release of the employee from his labor duties occurs without payroll;
"BUT" - in the event that at the time of release, the employee retains an average salary;
"PV" - if the employee is in forced absenteeism and this time is paid.

It is important for employers to remember that any suspension of an employee from the performance of their labor duties must be carried out in accordance with applicable law. The grounds that served as the reason for the removal must be sufficiently weighty, and most importantly, documented. If the procedure for suspension is violated, it can lead to proceedings between the employee and the employer in court, which in turn can lead the company and its officials to administrative responsibility.

Unfortunately, not all employees, having arrived at the enterprise, are ready to perform their duties, and there can be many reasons for this: from a banal health disorder to alcohol intoxication.

In such a situation, the employer has every right to remove them from work until the circumstances are clarified and a final decision is made, or until the reasons that impede work are eliminated.

Regulation under the Labor Code of the Russian Federation

In accordance with the norms of the law, namely Art. 76 of the Labor Code of the Russian Federation, the head of the enterprise or the head of the department have every right to prevent the employee from performing immediate duties if there is reason to believe that for some reason he will not be able to cope with the assigned tasks, or circumstances have arisen that have become an obstacle to admission to work place.

In particular, an employee may be suspended in the following situations:

appearance at the enterprise working time in a state of intoxication, both alcoholic and narcotic;
those who have not undergone a mandatory medical examination in accordance with the established rules specified in local acts or in federal legislation;
refusal or failure to undergo training in labor protection and safety regulations;
for medical reasons with an established ban on the performance of certain types of work or load;
suspension or cancellation of a license to perform certain types of work;
if there is an order from authorized persons to remove the employee from the performance of duties.

In case of removal of a worker from work, remuneration is not made, because he does not fulfill his duties. In exceptional cases, he may be kept average earnings, but only if there is evidence that the enterprise itself was the cause.

The procedure for this action according to the Labor Code of the Russian Federation is analyzed in the following video:

The nuances of the grounds

Despite the fact that Art. 76 of the Labor Code provides a fairly complete list of reasons for suspension, some employers do not always understand in what cases they can be applied, because life circumstances are different, and it is not always clear how they are consistent with the law:

For example, remove an employee appeared at the enterprise in a drunken state, is possible only if this happened during his shift, and not after the end of the working day. Also, this ground can be applied only if the state of intoxication can be documented. That is, at a minimum, it is necessary to draw up an act on the identification of the fact of inappropriate behavior with the signatures of several witnesses, write out a referral to a medical institution for examination and receive a written explanation from the citizen himself.
In the absence of the agreed documents, the suspension will be illegal, and the employee will be able to challenge it, as well as prove the violation of his rights to work and earn money.
There are nuances and during a medical examination. The point is that on the basis of Art. 213 of the Labor Code of the Russian Federation to pass periodic inspections employees are required not to own initiative, but on the basis of a pre-drawn schedule approved by the order for the enterprise, and also only after the conclusion of an agreement between the organization and the medical institution.
In the absence of the specified documents, the worker may refuse to undergo an examination, especially if he is required to undergo this procedure at their own expense or on their legal day off. After all, on the basis of the same Art. 213 of the Labor Code is paid by the enterprise, and during the time spent in the clinic, the employee retains the average salary (Article 185 of the Labor Code of the Russian Federation). Although in the event that the order was issued, and the employee does not fulfill its norm, the suspension will be completely legal.
There are nuances and in case of non-training in labor protection. The fact is that each enterprise should have a package of documents regulating the procedure for creating a commission to verify this knowledge, a regulation and evaluation criteria should be developed in accordance with the norms of Art. 212 of the Labor Code of the Russian Federation.
Just like that, accusing an employee of violating safety regulations or lacking relevant knowledge will not work, this requires written confirmation. That is, the same schedule for conducting training, responsible persons authorized by order, a protocol for passing an inspection, set and reasonable grades, without which suspension on this basis will be illegal.
There are features in the removal due to medical reasons. The point is that if there medical report with recommendations to reduce the load or change labor duties, the employer must first of all be guided by the norms of Art. 73 of the Labor Code of the Russian Federation, which stipulates the procedure for transferring an employee to another position for up to 4 months.
If the enterprise does not have a position that would correspond to the recommendations given in the conclusion, or the employee does not agree to temporary transfer, he can be suspended from work for up to 4 months or until receiving disability in the manner prescribed by law.
There are some difficulties and upon suspension or expiration of the license or other documents. The fact is that this rule, as a rule, applies to drivers who are deprived of their rights due to a violation of the law, as a result of which they can no longer fulfill their duties. But permissions for certain types of activities are provided for in other cases. For example, to work as a security guard with the right to carry weapons, you need a license, which can be suspended due to a violation of the rules for storing personal weapons or when an administrative penalty is imposed (Article 26 of the Federal Law No. 150). There is also a special patent for workers in the medical industry, which has a validity period and must be periodically confirmed (clause 46 of the Federal Law No. 99).
Employers need to remember that in some cases, it is not the employee, but the enterprise, who is responsible for obtaining or renewing a license, because on the basis of Art. 196 of the Labor Code of the Russian Federation, it is the management of the organization that must check the qualifications of the employee and send him to training, especially in cases where such norms are regulated by law.
There may be nuances and upon receipt of an order from authorized persons. As a rule, such a document is received during the inspection by the Labor Inspectorate of the legality of the actions of employees of the personnel or accounting department, or when an infectious disease is detected in an employee whose duties are related to serving the population.
In such a situation, the employer has no choice and is obliged to remove the worker until all the circumstances leading to such a situation are identified, or until a final decision is made regarding the duration of the sanctions to be applied. In the above situation, the employee may be dismissed on the basis of the norms of Art. 81 of the Labor Code of the Russian Federation.

Nuances in the removal of a foreigner

It has its own characteristics and the procedure for removing a foreign citizen from work, who can carry out labor activities on the territory of the Russian Federation only if there is a certain package of documents that have their own validity period.

In particular, this procedure is stipulated in Art. 327.5 of the Labor Code of the Russian Federation, which states that a foreign worker can be suspended in the following cases:

suspension or expiration of the permit of the enterprise to use the labor of foreigners;
expiration of the patent;
expiration of a temporary stay or residence permit in the Russian Federation;
expiration of the medical insurance policy.

The procedure for such an action

It should be noted that suspension from work is a temporary measure and in most cases does not lead to automatic dismissal, but on the contrary, it is rather peculiar. After all, the lack of earnings due to one's own negligent attitude to the norms of local acts of the enterprise becomes a more instructive lesson than an order to reprimand.

Suspension procedure currently not regulated by law, therefore, in each organization, this procedure is carried out on the basis of the norms specified in local acts, or on the basis of administrative documents, which are orders and orders with reference to documentary evidence of the reasons for excommunication from activities.

The procedure largely depends on the reason for the exclusion from the performance of duties, which in without fail must be in writing.

That is, initially, when a fact is revealed, for example, a failure to pass a medical examination or a lack of an appropriate level of knowledge on labor protection, it is drawn up in the name of the head of the enterprise with a description of the current situation. All documents confirming the fact of violation are attached to the note, and based on the results of studying all the documentation, a decision is made, which is fixed in the order to remove the employee, indicating the period of such sanctions.

Responsibility for violation of the order

In the event that an employee is removed without documented grounds, such actions are considered unreasonable and may entail bringing to administrative responsibility on the basis of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation. It provides for penalties up to 50 thousand rubles or disqualification and a ban on engaging in a certain type of activity.

Also, the enterprise will be obliged to pay compensation to the employee for deprivation of the right to work and receive earnings on the basis of Art. 234 of the Labor Code of the Russian Federation in the amount average salary for all days of illegal suspension from work duties. That is why, when issuing such an order, management should consider whether the grounds for removal meet legal requirements.

When does it become necessary to suspend an employee from work and in what cases does the employer not only have the right, but also the obligation to do so? What are the consequences of the incorrect execution of such a suspension?

Suspension from work is understood as the temporary exclusion of an employee from the performance of his labor duties. In fact, this means a temporary suspension of the performance of his labor function. The fact of removal is always associated with the will of the employer; the employee does not have the opportunity and authority to remove himself from work on his own.

In accordance with Art. 76 of the Labor Code of the Russian Federation, the legislator imposed on the employer a legal obligation to remove (prevent) the employee from work if there are grounds provided for in this article, as well as in accordance with the provisions of other regulatory legal acts of the current legislation of the Russian Federation. First of all, there are two important points to remember:

1) the list of grounds for suspension (non-admission to work) is contained only in the legislation, the employer has no other grounds for suspension from work, and if the employee is suspended for illegal reasons, adverse legal consequences- in fact, this would mean breaking the law, labor rights and freedoms of the worker;

2) the employer does not have the right to choose whether or not to suspend the employee from work for the specified reasons: this is his legal obligation, and he must fulfill it without fail, as required by law, otherwise he will also be held accountable.

The general grounds for suspension from work are contained in Art. 76 of the Labor Code of the Russian Federation. The employer is obliged to suspend the employee from work:

Appearing at work in a state of alcohol, drugs or other toxic intoxication;

Not trained in the prescribed manner and tested knowledge and skills in the field of labor protection;

A person who has not passed a mandatory medical examination in accordance with the established procedure, as well as a mandatory psychiatric examination in cases provided for by the current legislation of the Russian Federation;

If, in accordance with the medical report, contraindications for the performance of the stipulated work are identified;

In the event of suspension for a period of up to two months of the special right of an employee (licenses, rights to manage vehicle, the right to bear arms, other special rights) in accordance with the legislation of the Russian Federation, if this entails the impossibility for the employee to fulfill the obligations under the employment contract and if it is impossible to transfer him to another job available to the employer (subject to written consent), which the employee can perform taking into account his state of health;

At the request of bodies or officials authorized by the current legislation of the Russian Federation;

In other cases provided for by this Code, other federal laws and other regulatory legal acts Russian Federation.

Suspension of an employee who appeared at work in a state of alcoholic, narcotic or other toxic intoxication (paragraph 2, part 1, article 76 of the Labor Code of the Russian Federation)

In the event that the fact that an employee is at work in a state of intoxication (alcohol, narcotic or other toxic), the employer is obliged to remove the employee from performing his work, fixing both the fact of finding him in such a state and the fact of removal. There is no standard form for fixing the fact of intoxication, but it is recommended to draw up a detailed document reflecting the circumstances and event associated with this basis. Such a document can be a memorandum addressed to the head of the organization, for example, the immediate supervisor of the employee or the structural unit in which he is listed, and / or an act drawn up and signed by several employees. In the content of such a fixing document, it is important to reflect:

Who wrote and signed this document;

When (date, time) and where (location of employer, address information, indication of workplace employee) the employee was found in a state of intoxication;

What actual signs of the state of intoxication of the employee were found (for example, an unstable posture, bad breath, discoloration of the skin of the face, incoherent speech, other circumstances that make it possible to characterize such a state as intoxication);

In the presence of - detailed description the consequences of the employee being at his workplace and / or performing his work duties in a state of intoxication (violation of labor discipline and / or rules work schedule, safety regulations, etc., improper performance of labor duties, defects in production, damage to property, harm to the health of third parties, etc.);

Next steps for this employee, for example, the announcement of the order of the immediate supervisor (if he has such authority) on suspension from work;

Request for execution of the suspension of this employee, medical examination, investigation of the established fact, application of measures against the employee disciplinary action.

In this situation, the main tasks of the employer and authorized persons will be:

Confirmation of the fact of intoxication;

Creation of a commission to establish the fact of intoxication;

Registration of results of work of the commission;

Referral of an employee for a medical examination;

Drawing up an order to remove an employee from work and entering information into a personal card (if necessary);

Imposing a disciplinary sanction on an employee.

In the event that an employee is allowed to work, if there are no more grounds for his removal, the employer is recommended to issue this action with an appropriate admission order to clearly fix the period of suspension of the employee.

Suspension of an employee who has not completed training and testing of knowledge and skills in the field of labor protection in the prescribed manner (paragraph 3, part 1, article 76 of the Labor Code of the Russian Federation)

The employer, by virtue of the law, is obliged to conduct labor protection briefings, internships at the workplace, train employees in safe methods and techniques for performing work, and providing first aid to victims at work. Based on the results of such events, the employer checks knowledge of labor protection requirements (Article 212 of the Labor Code of the Russian Federation, Decree of the Ministry of Labor of Russia and the Ministry of Education of Russia dated January 13, 2003 N 1/29). Employees who have not completed training and/or knowledge testing in the field of labor protection should be suspended by the employer without being provided with other work. All employees, including the head of the organization, are required to undergo training and knowledge testing (Article 225 of the Labor Code of the Russian Federation). Responsibility for organizing training and testing knowledge of labor protection requirements is also assigned to the head of the organization.

These events are documented in the following documents:

1) regulations on the procedure for organizing and conducting training on labor protection of employees at the enterprise;

2) instructions on labor protection for professions and types of work;

3) a training program on labor protection;

4) orders:

On imposing on a particular employee the duties of conducting an introductory briefing;

On assigning duties to specific employees to carry out initial briefing at work;

On the establishment of a commission to verify knowledge of labor protection requirements;

5) programs:

Conducting an introductory briefing on labor protection;

Conducting primary briefing of employees on labor protection;

6) registration logs of introductory briefing and briefing at the workplace;

7) a list of professions and positions of employees exempted from primary briefing.

The fact of failure to pass the briefing is recorded by an act, which is drawn up either by the head of the organization or by a person authorized by him. In addition, this is additionally confirmed by the absence of the employee's signature in the registration logs.

The suspension order must contain the last name, first name, patronymic and position of the dismissed employee, the reason for the suspension with reference to the relevant norm of the law, as well as the period for which he was suspended. Instead of the end date of the suspension, an event is indicated - the moment of the briefing, although it is recommended, if possible, to indicate the date of admission of the employee, which will avoid a dispute about the day of going to work and proper notification of the employee about this.

It should be noted that an employee on this basis may also be dismissed in accordance with the instructions of the state supervision inspector; in this case, the details of the issued order are indicated in the order as the basis. The fact that such an order is issued may serve as a reason for holding the employer liable for violation of labor laws.

The failure of the employee to undergo briefing as a result of his guilty actions, in addition to suspension, will also entail such adverse consequences for him as non-payment of working hours for the period of suspension and non-inclusion of him in the length of service giving the right to annual paid leave (parts 2, 3 of article 76, part 2 article 121 of the Labor Code of the Russian Federation). An employee may be subject to disciplinary liability (clause 35 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation"). Guilt in such cases can be determined and recorded in the form of facts of evasion from instruction, lack of preparation for the exam, failure to appear for the exam, etc.).

Suspension of an employee who has not passed a mandatory medical examination in the prescribed manner, as well as a mandatory psychiatric examination in cases provided for by the current legislation of the Russian Federation (paragraph 4, part 1, article 76 of the Labor Code of the Russian Federation)

For certain categories of employees, the employer must organize at his own expense the passage of mandatory medical examinations, and employees are required to successfully pass them (paragraph 12, part 2, article 212, paragraph 6, article 214 of the Labor Code of the Russian Federation). Compulsory medical examinations can be preliminary (upon employment) and periodic (during employment), extraordinary, special, mandatory psychiatric examinations of employees (by virtue of the requirements of the law or at the request of employees in accordance with medical recommendations). For the duration of these procedures, the employees retain their place of work (position) and average earnings. If the employee does not pass such a mandatory examination (examination), then he is subject to removal from work by the employer.

To confirm the fact that the employee did not go through such a procedure, the employer can issue or independently obtain a document confirming this, and then issue an order to issue a suspension. The employer can confirm the fact of failure to pass the inspection (certification) by the following documents and methods:

Request and receive from the employee an explanatory note or his written refusal to pass;

Request and receive from the employee a certificate of incapacity for work issued during the period of the inspection;

Request from the medical institution in which the employer organized the procedures, documentary evidence of the employee's absence for examination;

Independently draw up and issue an act on the refusal of the employee to undergo the procedure.

It is important to note that in case of failure to pass the mandatory medical examination or examination due to the fault of the employee, the employer has the right to apply to him the disciplinary measures provided for by the current Labor Code of the Russian Federation (Articles 191, 192 of the Labor Code of the Russian Federation, clauses "c" clause 35 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2).

When applying for a suspension on the specified basis (as well as on any other), in the time sheet (form N T-12 or N T-13), it is necessary to record the period actually worked by the employee until the issuance of the order on his removal. The time of suspension is noted in the report card by putting down the letter "NB" or the digital "35" code (suspension from work (non-admission to work) for reasons provided for by law). It is not necessary to enter data on the suspension in a personal card, however, the employer will need this information when calculating the length of service of the suspended employee, which gives him the right to annual paid leave, so it is advisable to record this.

The document that confirms the examination (examination) of an employee is a medical certificate issued by an authorized medical organization. The employee is subject to admission to work upon providing such a conclusion to the employer.

Suspension of an employee if, in accordance with a medical report, contraindications for performing conditional work are identified (paragraph 5, part 1, article 76 of the Labor Code of the Russian Federation)

In some cases, the employer is obliged to remove the employee from the work performed for health reasons.

This is also connected with the situation when the employee, due to his health, cannot perform the labor functions that are assigned to him by the employment contract. Such an obligation follows from the principle of protecting the constitutional right of an employee to protect his health (Part 2, Article 7 of the Constitution of the Russian Federation), realizing the right to health protection and safe work (Part 2, Article 18 of the Federal Law of November 21, 2011 N 323-FZ " On the Basics of Protecting the Health of Citizens in the Russian Federation"), prohibiting the employer from using the labor of a person who, according to medical reasons can no longer do his job. By virtue of the law, the employer is obliged not to allow employees to perform their labor duties in the event that they have medical contraindications to work (paragraph 13, part 2, article 212 of the Labor Code of the Russian Federation).

To fulfill this obligation, the employer needs a legal fact - obtaining documentary information that this employee, for health reasons, can no longer perform the previous labor function, i.e. the employee has contraindications to such work. This information may be contained in various documents, in particular:

A medical certificate issued by a medical institution after a medical examination (certification) - both passed by the employee voluntarily, and due to the requirements for mandatory passing;

Individual program for the rehabilitation of a disabled person (approved by Order of the Ministry of Health and Social Development of Russia dated 04.08.2008 N 379n "On approval of the forms of an individual rehabilitation program for a disabled person, an individual rehabilitation program for a disabled child, issued by federal state institutions of medical and social expertise, the procedure for their development and implementation");

Rehabilitation program for a victim of an accident at work and an occupational disease occupational diseases, forms of the program of rehabilitation of the victim as a result of an accident at work and an occupational disease").

The main feature of the consequences of the removal of an employee on the specified basis is that the period of suspension on it is limited - until the employer formalizes the transfer of this employee and, accordingly, the application of the rules on the transfer.

If the period during which the employee cannot perform his job is more than four months, the employer does not have corresponding vacancies, and the employee does not give his consent to the transfer, then a suspension order is not issued. Employer in this case issues a dismissal order (part 3 of article 73 of the Labor Code of the Russian Federation).

Before the expiration of the four-month period, such an employee is temporarily transferred to another job. If the employer refuses or does not have the relevant job, he is still subject to dismissal and his place of work (position) is retained for the entire period specified in the medical report. During the period of absence from work wage the employee is not charged.

Suspension in case of suspension for up to two months of an employee’s special right (license, right to drive a vehicle, right to carry weapons, other special right) in accordance with the legislation of the Russian Federation, if this entails the impossibility for the employee to fulfill obligations under an employment contract and if it is impossible to transfer him to another job available to the employer, subject to written consent, which the employee can perform taking into account his state of health (paragraph 6, part 1, article 76 of the Labor Code of the Russian Federation)

This ground is deliberately singled out by the legislator as a separate one, since in this case the employee has a special right issued by the competent authority, and the presence of such a special right for the employee allows him to perform his labor function, which is assigned to him by the employer (for example, a security guard with the right to carry weapons , aircraft pilot, ship crew member, etc.).

A striking example of such a case is the removal of an employee who acts as a driver of a vehicle, who, by virtue of the requirements of the law, is required to periodically undergo an examination (Article 23 of the Federal Law of December 10, 1995 N 196-ФЗ "On Safety traffic"). If contraindications to further driving are identified, this will be indicated in the conclusion, which will oblige the employer to remove such an employee from this work (Article 23.1 of the Law in question).

In this case, the peculiarity of the suspension is also associated with the inability to transfer the employee to another job (either a vacant lower position, or lower paying job), which he can perform taking into account his state of health. In this situation, the employer is obliged to offer such an employee all the vacancies that he has that meet the specified requirement, both in this locality and in another, if this is provided for by collective, labor contracts and agreements (paragraph 6, part 1, art. 76 of the Labor Code of the Russian Federation).

The employment contract is subject to termination if the period of suspension of the special right exceeds two months or the employee is deprived of this right (clause 9, part 1, article 83 of the Labor Code of the Russian Federation).

It should be specially emphasized that the employer does not have the right to remove, on the indicated grounds, an employee who has job description or section employment contract dedicated official duties, there is no condition that he cannot perform his direct duties without this special right. In this case, the suspension will be illegal.

Suspension at the request of bodies or officials authorized by the current legislation of the Russian Federation (paragraph 7, part 1, article 76 of the Labor Code of the Russian Federation)

The legislator determined that the bodies and officials, which the current legislation has endowed with such authority, on the basis of the relevant decision made, have the right to demand from the employer the removal from work of the employee indicated by them, and the employer, if this requirement is legal and justified, is obliged to fulfill it.

The Labor Code of the Russian Federation does not contain a list of bodies and officials who are entitled to exercise this authority, therefore such a list is determined by an analysis of the current legislation of the Russian Federation related to this issue.

1. Suspension of powers of a sole proprietor executive body involves the dismissal of the sole executive body (director, CEO). Paragraph 4 of Art. 69 of the Federal Law of December 26, 1995 N 208-FZ "On joint-stock companies"it is provided that if the formation of the executive bodies is carried out by the general meeting of shareholders, then the charter of the company may establish the right of the board of directors (supervisory board) of the company to decide on the suspension of powers managing organization or manager. Simultaneously with the above decisions, the board of directors (supervisory board) of the company is obliged to make a decision on the formation of a temporary sole executive body of the company (director, general director) and holding an extraordinary general meeting shareholders to resolve the issue of early termination the powers of the sole executive body of the company (director, general director) or the managing organization (manager) and the formation of a new sole executive body of the company (director, general director) or the transfer of powers of the sole executive body of the company (director, general director) to the managing organization or manager. An additional basis not only for suspension from work, but also for termination of the employment contract with the head of the organization is the decision arbitration court, according to which the court removes the head of the debtor organization from office at the request of the interim manager in case of violation of the requirements of the federal law (clause 1 of article 278 of the Labor Code of the Russian Federation, clause 1 of article 69 of the Federal Law of October 26, 2002 N 127-FZ " On insolvency (bankruptcy).

2. In the process of implementing state control and supervision over compliance with labor laws Federal Service for Labor and Employment has the authority to: issue orders to dismiss from work persons who have not completed training in safe methods and techniques for performing work in the prescribed manner, briefing on labor protection, internships at workplaces and testing knowledge of labor protection requirements (Article 357 of the Labor Code of the Russian Federation); issue orders to remove from office officials of the executive authorities of the constituent entities of the Russian Federation exercising the transferred powers of the Russian Federation in the field of promoting employment of the population, and public institutions employment services of the constituent entities of the Russian Federation (clause 5.1.3 of Decree of the Government of the Russian Federation of June 30, 2004 N 324 "On approval of the Regulations on Federal Service on labor and employment" (as amended on 06/15/2010)).

3. Courts of the Russian Federation, competent to consider criminal cases, guided by paragraphs. 10 p. 2 art. 29 and Art. 114 of the Code of Criminal Procedure of the Russian Federation, if necessary, may satisfy the requirement to temporarily remove from office a suspect or accused in a criminal case. The issue of suspension is decided by the court at the request of the investigator and with the consent of the head of the investigative body or at the request of the interrogating officer and with the consent of the prosecutor at the place of the preliminary investigation. A ruling on the temporary removal of the suspect or accused from office or on refusal to do so shall be issued by the court within 48 hours from the date of receipt of such a request. If it is satisfied, the decision on temporary suspension is sent to the place of work of the suspect or the accused. A suspect or accused temporarily suspended from office has the right to receive a monthly state allowance, which is paid to him in accordance with paragraph 8 of part 2 of Art. 131 of the Code of Criminal Procedure of the Russian Federation in the amount of five minimum dimensions wages. Cancellation of the temporary removal of the suspect or the accused from office is carried out on the basis of a decision of the interrogating officer, investigator, when, in the opinion of these persons, the application of this measure is no longer necessary.

However, it should be noted that such a removal procedure does not apply if a high official of a constituent entity of the Russian Federation (the head of the highest executive body of state power of a constituent entity of the Russian Federation) is involved as an accused and is charged with committing a grave or especially grave crime. In accordance with Part 5 of Art. 114 of the Code of Criminal Procedure of the Russian Federation, in such a case, the Prosecutor General of the Russian Federation shall send a proposal to the President of the Russian Federation on the temporary removal of the said person from office. The President of the Russian Federation, within 48 hours from the moment of receipt of the submission, decides on the temporary removal of the said person from office or on refusal to do so.

4. The requirement to remove an employee from work has the right to present a number of specialized inspections and supervision(Sanepidnadzor, Gosgortekhnadzor). Persons who are carriers of pathogens infectious diseases, can become sources of the spread of infectious diseases due to the characteristics of the production in which they are employed or the work they perform. With their consent, they are temporarily transferred to another job that is not associated with the risk of the spread of infectious diseases. If such a transfer is not possible, on the basis of the decisions of the chief state sanitary doctors and their deputies, they are temporarily suspended from work with the payment of benefits according to social insurance(Clause 2, Article 33 of the Federal Law of March 30, 1999 N 52-FZ "On the sanitary and epidemiological well-being of the population").

For a violation of the welding technology or a repeated unsatisfactory quality of the manufactured production welded joints, welders and welding production specialists may be removed by decision of the State Technical Supervision Service. Admission to work of these employees is possible only after passing an extraordinary certification and based on its results. These requirements are enshrined in the Rules for the certification of welders and specialists in welding production, approved by the Decree of the Gosgortekhnadzor of Russia dated October 30, 1998 N 63.

5. State sanitary doctors and their deputies also have the authority to remove them in accordance with the provisions of the Federal Law of March 30, 1999 N 52-FZ "On the sanitary and epidemiological welfare of the population" (as amended on December 30, 2008). In the event of a threat of the emergence and spread of infectious diseases that pose a danger to others, the chief state sanitary doctors and their deputies issue motivated decisions on the temporary suspension from work of persons who are carriers of pathogens of infectious diseases and can become sources of the spread of infectious diseases due to the peculiarities of the work they perform or production (paragraph 3, paragraph 6, paragraph 1, article 51 of the above Law).

6. In case of introduction on the territory of the Russian Federation state of emergency measures and temporary restrictions may be envisaged, including the removal of employees from work. In the presence of the circumstances specified in paragraph "b" of Art. 3 of the Federal Constitutional Law of May 30, 2001 N 3-FKZ "On the state of emergency" (as amended on March 7, 2005) (emergencies of natural and technogenic nature, emergency environmental situations, including epidemics and epizootics resulting from accidents, natural hazards, catastrophes, natural and other disasters that caused (could cause) human casualties, damage to human health and the natural environment, significant material losses and violation living conditions of the population and requiring large-scale rescue and other urgent work), a decree of the President of the Russian Federation on the introduction of a state of emergency may provide for:

Suspension from work for the period of the state of emergency of managers government organizations in connection with the improper performance by the said heads of their duties and the appointment of other persons as temporarily acting as the said heads;

Suspension from work for the period of the state of emergency of the heads of non-governmental organizations in connection with their failure to perform or improper performance of the measures provided for by paragraph "g" of Art. 11 of this Federal Constitutional Law and paragraph "c" of this article, and the appointment of other persons as temporarily acting as these leaders.

Execution of documents upon dismissal of an employee at the request of a body or official

Upon receipt by the employer of a document on suspension from work of a particular employee, you should carefully read it. Check whether the request was made by the appropriate body or official, whether it is correctly executed, what kind of decision it contains.

If the document received does not contain a request for suspension, but a request, recommendation or proposal to suspend the employee from work, then the employer makes this decision on the suspension of the employee on his own, it does not contain signs of mandatory fulfillment of the requirement for suspension.

As a rule, the time of suspension is indicated in the decision or order of the authorized body. The options for determining the suspension period are different: a specific date or a condition for the commission of certain actions (most often, the elimination of a violation).

If a demand for dismissal is nevertheless received in relation to the employee, then he cannot be allowed to work (Article 76 of the Labor Code of the Russian Federation). Suspension from work (non-admission to work) is formalized by the relevant order of the head of the organization. A unified form of such a document has not been approved, therefore, the organization has the right to independently develop it in compliance with certain requirements.

The relevant order on suspension must necessarily indicate the surname, name, patronymic and position of the employee, the grounds on which he is suspended from work, as well as the period of such suspension - until the expiration of the period established in the requirement of the body or official to remove the employee. When specifying the appropriate grounds, the order should reflect the details of the decision or resolution of the relevant official or body that ordered the dismissal of the employee. It is also recommended that the order indicate the date of commencement of work after the suspension, if such is known when the order is issued. This will avoid further disputes about the employee's absence from work at the end of the suspension period.

The employee should be familiarized with the dismissal order against signature. If the employee refuses to sign the familiarization, then an appropriate act is drawn up.

In addition to the order, the organization must reflect the corresponding suspension in the time sheet(unified form N T-12 or N T-13), fixing the period actually worked by the employee until the issuance of an order to remove him. The period of suspension is noted in the report card by putting down the letter "NB" or the digital "35" code (suspension from work (non-admission to work) for reasons provided for by law).

AT work book record of dismissal of an employee from work not entered.

AT personal card It is not necessary to make an entry when dismissing an employee. However, if necessary, to ensure internal accounting this information it is recommended to reflect in sect. X "Additional information". Fixing this information may be useful in the future when calculating the length of service for granting leave. Information on the admission of the employee after the end of the period of his suspension from work may also be entered.

During the entire period of suspension from work, wages are not accrued to the employee (by virtue of part 3 of article 76 of the Labor Code of the Russian Federation), except for cases expressly established in the legislation. So, for example, in the case of suspension from work in the order of Part 6 of Art. 114 and paragraph 8, part 2 of Art. 131 of the Code of Criminal Procedure of the Russian Federation for this period, the employee is assigned a monthly state allowance in the amount of five minimum wages. The suspension time is not included in the length of service required to grant leave (part 2 of article 121 of the Labor Code of the Russian Federation).

There are certain subtleties in the design work permit order after the end of the suspension period. It should be borne in mind here that the formal basis for admission is the abolition of this requirement. In this case, the employer is recommended to check with the official who sent the request how it will be canceled.

It is best to issue an admission by order, since in this case the organization will have a document fixing the end of the period of suspension and admission of the employee to work.

As with the suspension order, unified form No, so the organization draws up the order on its own. It reflects the last name, first name, patronymic and position of the employee, the date from which he must start work, and the grounds for admission. Also in this order it is recommended to instruct the accounting department to resume payroll specified employee. The procedure for familiarization with this order is standard, as in the case of suspension.

Summing up, it should be noted that suspension from work at the request of authorities or officials is not such a common case in labor relations. However, it is precisely in this unpopularity that the danger lurks: managers and employees of organizations need to understand the intricacies of these procedures, the scope of authority of certain officials and authorities that have the right to put forward demands for the removal of an employee from work, analyze the legitimacy and validity of such requirements, distinguish requirements from recommendations and / or requests to act within the framework of the law, applying the necessary procedures and drawing up the relevant documents.

The grounds for suspension from work in other cases provided for by the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation (paragraph 8 of part 1 of article 76 of the Labor Code of the Russian Federation) are determined and regulated not only by the Labor Code of the Russian Federation and labor law, but also by a vast array of current legislation regulating the specifics of labor relations in certain areas, in special productions related to public service, during a state of emergency, in the investigation of criminal cases, etc. In order to legitimately determine the grounds for removal in such cases, it is imperative to pay attention to the rules that regulate the grounds and procedure for the removal of such categories of employees in special laws and by-laws. regulations, and comply with all the necessary requirements for this.

Order on suspension from work in connection with the employee's evasion from undergoing a mandatory periodic medical examination

(sample filling)

A.Benmerabeth

"Kadrovik.ru", 2015, N 6

Suspension of an employee from work means preventing him from performing his immediate labor duties stipulated by the employment contract for a certain time.
The employer has the right not to allow the employee to the workplace if there are grounds presented in Art. 76 of the Labor Code of the Russian Federation. The exclusion of an employee from work does not entail a change or termination of the employment relationship, although it may be a prerequisite for dismissal. This is a temporary measure.

The list of grounds provided in Art. 76 of the Labor Code of the Russian Federation, is not exhaustive. The employer may not allow his employee to work on other grounds, which must be specified in federal law.
For example, if the work duties of an employee are directly related to the risk of infectious diseases, the employer has the right not to allow those employees who do not have preventive vaccinations to work. This is stated in Law No. 157-FZ of September 17, 1998 “On Infectious Diseases”.

The employer must provide employees with timely vaccinations. This is stated in Part 2 of Art. 212 of the Labor Code of the Russian Federation. Evasion of an employee from vaccinations is the basis for removing him from work.

Another reason when the employer has the right not to allow the employee to work is a court decision.
The decision of the court is the basis for the removal of the heads of enterprises in case of improper performance of their duties during an emergency or natural disaster.

In Decree of the Government of the Russian Federation of March 10, 1999 N 263 "On the organization and implementation of production control over compliance with the requirements industrial safety at a hazardous production facility" states that the employee responsible for the implementation of production control is obliged to provide the employer with a list of persons who need to be removed from work, since they do not have the proper professional level.

If the employee has not passed the mandatory medical examination, the employer has the right not to allow him to work. Such a ground for suspension from work is valid only when the employee's performance of his labor functions related to his health.
For example, educators kindergarten or school teachers. They cannot be allowed to work if, during mandatory medical examinations, a disease is detected that can harm children.

If an employee arrives at work in a state of alcohol intoxication or in another intoxicating state, the employer has the right not to allow him to work.
He can do this only after a medical examination. Only a doctor can fix the intoxication of an employee and make a diagnosis about his condition.
The diagnosis of intoxication is based on Guidelines by medical examination. In these guidelines, the characteristics of 5 states of intoxication are given. Depending on the doctor's diagnosis, the employer has the right to apply disciplinary action.

If labor duties are associated with special knowledge, skills and abilities, then the employee must have a document that confirms such skills. For example, a license to carry a weapon or a driver's license. If this special document has expired, the employer has the right to suspend the employee from performing work duties for up to two months.

Any violation must be documented. Only on the basis of written evidence, the employer has the right to issue an order to remove the guilty employee from work.

On what grounds can a decision be made to dismiss?

In accordance with general rules the employer may decide to remove the employee from the performance of his professional obligations only if there are good reasons for this. These reasons include the following reasons:

Stay of an employee in a state of alcoholic or drug intoxication or under the influence of other drugs. It is no secret that in such a state, the employee simply will not be able to qualitatively fulfill the tasks assigned to him. professional features. Moreover, such an employee may be a source of danger to other employees. That is why any leader must make a timely decision regarding the speedy removal of such an employee from work.
The employee, for whatever reason, did not undergo mandatory training in labor protection. The issue of labor protection is the most important aspect in any modern professional relationship. Regardless of the actual reasons why the employee has not been instructed, the employer will be obligated to remove him from service as soon as possible.
Ignoring by the employee of his obligations regarding the passage of regular medical examinations. The current legislation establishes a list of special positions, whose employees must undergo regular inspections. In the absence of an official medical report on the current state of health of an employee, his employer will be obliged to take all necessary measures to remove the employee as soon as possible.
The employee has any medical contraindications for the performance of the labor functions assigned to him. These contraindications can be identified during mandatory medical examinations. The main thing is that the fact of their presence should be recorded in official form. For this, a medical specialist draws up an appropriate conclusion.
Suspension of a special permit or right that an employee must have while working in the current position. The most striking example would be a driver's license. As you know, this document is required for absolutely all employees working as a driver. Therefore, the deprivation of an employee's driver's license will be a valid reason for his subsequent removal from work.
Receipt by the employer of the relevant requirements from the authorized bodies. Such a body may be: Labor Inspectorate, judicial institution, prosecutor's office, etc. In this case, the manager will be obliged to fulfill the order as soon as possible and remove the employee from the current work.

How is a dismissal order issued?

As soon as the employer has a documented basis for the removal of the employee from the performance of the professional obligations assigned to him, the director must proceed to the next stage of this procedure. It will consist in the preparation of a formal suspension order. It should immediately be noted that the unified form of the form this order does not have. Therefore, the document can be drawn up by the employer in a free manner. However, the responsible person will still need to check the mandatory information in the prepared order, which should include the following important information:

Data on the employee who will be suspended from the performance of labor functions, namely, the name of the position he holds, full name, structural subdivision where he works.
Description of the reasons for the removal of the subordinate.
Links to various documents that are the main reasons for the employer to make the appropriate decision. Here, for example, the details of the order received from the authorized instance, the numbers of the company's internal acts, etc. can be indicated.
Learn more about suspension payment. In most cases, the mere fact that an employee is suspended from work means that this time will not be paid. However, sometimes there are certain exceptions in which the manager will still pay for downtime. Everything here will depend on the specific situation and on the immediate reasons for the suspension.
The exact length of the time period during which the employee will have no legal right to perform labor functions. This duration may also depend on the specific situation and the immediate reasons for the suspension. The deadline can be specified as a specific date or as an event after which the employee will be returned to his right to work.
Additional information that will be directly related to the issue of removing an employee from his job. Here, for example, an employee can be indicated to whom the duties of an absent person will be temporarily transferred, etc.

After drawing up the removal order, the document must be handed over to the employee himself to familiarize himself with the contents of the order. If the employee refuses to sign the order, this fact is recorded in a special act, which is drawn up in the presence of two independent witnesses.

How to reflect the suspension from work in personnel documents?

One of the most popular personnel documents the timesheet still remains. Despite the fact that its maintenance is no longer a mandatory procedure, it can still be found in huge number modern organizations.

Suspension of an employee from work, of course, will always be the most serious decision on the part of the manager. Therefore, the employer must do everything to carry out the procedure in strict accordance with the established rules. In this case, it is also desirable to enter the entire important information about removal. It is placed in the document using the following notation:

If the period of suspension of an employee from his work is not paid by the employer, the designation "NB" is put in the appropriate columns.
If an employee was suspended from his job, however, he will still be paid wages in the average salary - the columns are marked "BUT".
If the suspension is forced absenteeism on the part of the subordinate and will be fully paid, the “PV” mark is put in the columns.

Consequences of illegal suspension from work

As mentioned above, the forced release of an employee from his work can be made by the head of the organization only if there are really legal grounds for this. Moreover, all these grounds must be documented. At the same time, the very fact that the employee has or does not have malicious intent in this case will not have any significance.

If an employee believes that his suspension from work is by no means lawful, he will have grounds for contacting an authorized organization. Such an organization could be, for example, the Labor Inspectorate. She has all the necessary powers to consider written claims from employees and make an objective decision to resolve the conflict that has arisen.

After receiving an official statement from an employee, representatives Labor Inspectorate are likely to make a decision regarding the appointment unscheduled inspection. During this event Special attention Representatives of the law will be sent to verify the validity of the suspension. In this case, all documentary grounds will be considered, including internal acts of the organization and other papers. If the employer's decision is indeed found to be unlawful, the employee's requirements will be satisfied. This, in turn, may threaten the subordinate with various fines and other measures of responsibility.

The case of unlawful removal may also be considered in court. In this case, the employee will have the right to file additional claims, for example, to provide compensation for moral damage caused by the boss.

Available certain grounds, based on which the manager is obliged to remove the worker from his position. These criteria are thoroughly described in article 76 of the Labor Code of the Russian Federation. The article will give detailed information about the opportunities available in labor code(abbreviated as TK) for the dismissal of a worker.

In what cases does an employment contract terminate?

The process of terminating an employment contract can occur in the following cases.

By mutual desire.
The end of the term of the employment agreement - at the will of the employee, or at the will of the manager.
Transfer to another position at the will of the employee.
Refusal to go to work due to a change in management, ownership of property or in connection with reorganization.
Refusal to work due to changes in the terms of the employment agreement.
Refusal to transfer to another job due to non-compliance of health according to the medical certificate for the current position.
Unwillingness to go to work due to the transfer of the head to another place of work.
Circumstances beyond the control of both parties.
Failure to comply with the rules of the employment contract.

When is an employer obliged to suspend an employee from work and on what grounds?

Before answering the question, we note that there are two concepts in jurisprudence:

Suspension from work - the manager is obliged to dismiss the person .
Termination of the employment contract - the worker is temporarily dismissed with a salary delay, while his place of work remains with him.

In what cases is an employer obliged to remove an employee from his position? Focusing on, you can list the reasons for which the head is obliged to remove the employee from his position:

The employee is seen at the place of work under the influence of alcohol, drugs, toxic or other influences.
The employee has not passed the appropriate test of training and acquired skills in the field of occupational safety.
Refusal of preliminary or periodic medical examination. Additional details on what to do if an employee fails a periodic health check are available in this material.
Detection after passing a medical examination of any diseases, infections, etc.
In the event of a request by official bodies authorized by federal laws, and in other cases justified by federal or other regulations.

By the way, in certain cases an order is being prepared on suspension from work for failing a medical examination - a sample in this article.

How to suspend an employee from work - the procedure for suspending an employee from work

The procedure for dismissing an employee depends on the reason, the sequence is as follows:

Documents are drawn up confirming the reason for dismissal: acts fixing the act, memorandum, refusal to undergo a medical examination, etc.
Based on existing documents, a suspension order is issued.
After eliminating the causes, an order is created that allows work.

How long is an employee's suspension from work?

The term also depends on the reason for this suspension. In addition, the period of suspension depends on the appropriateness of the setting, since in some cases it is impossible to establish it. For example, if a person has contracted an infectious disease, then it is unclear the time of his complete cure. Or, if the person is involved in a complex litigation, it will be difficult to answer this question. Focus on specific circumstances.

Sample order to dismiss an employee from work

The document of the order to dismiss the worker must have a serial number and is drawn up on the letterhead of the enterprise. It must also contain the following information:

Surname, name and patronymic and position of the dismissed.
The period for which the employee is suspended. Suspension in the order is issued for a time until all reasons for suspension are eliminated. If a case arises when a person needs to be suspended for up to 4 months, the manager is obliged to offer another position.
Payment for the period during which the employee is fired. The manager can pay for this period in the amount of 2/3 of the salary.
The name of the person who is obliged to monitor the progress of the process of compliance with the order.
Reason for dismissal. The order must mention the paper, the basis of which served for the dismissal, as well as the institution that issued it.
Position of the head and his signature.
The position of the person being suspended, his signature and transcript in case the person being suspended will challenge this decision in court.