How to correctly refuse a candidate and applicant after an interview: methods, examples, samples, how to write a letter. Employers are required to explain to candidates the reason for rejection within a week Is the employer required to explain the reason for rejection

Since July 2015, employers are required to explain to the candidate within seven days why they refused to hire him and conclude an employment contract.

The adopted law frightened many employers and gave rise to a lot of questions. The new law protects candidates, but does not provide clear instructions for employers, because of this, there may be different interpretations of the document and potential risks for companies. And as a result - significant material costs.

It is necessary to understand what can be considered a fact of rejection of a candidate. The law does not give a clear answer to this question. Based on expert practice, a refusal can be considered: a written negative answer if the employer uses the services of sites for the search and selection of personnel and uses the automatic function of refusal to the candidate; direct verbal refusal based on the results of the interview. In addition, the silence of the employer can also be assessed as a refusal. For example, if after the interview the candidate was promised to give an answer within a week, but the answer from the employer did not come. You should not wait for an invitation to an interview if the vacancy is closed due to the lack of need for it.

In all of the above cases, the employer is already obliged to provide a written response about the reasons for refusal within seven days, if a corresponding request is received from the candidate. Previously, the Labor Code did not establish any deadlines for such a refusal, although it obliged them to report the reason for the refusal. It is the new requirement to refuse within seven days that exacerbates the situation. The law does not give a clear interpretation of the moment of interaction with the candidate, the obligation to provide a written refusal arises within a week, which gives a wide field of activity for manipulators of law and labor swindlers who do not plan to work in the company at all, and their goal is to make money on different employers . In other words, the employer is obliged to provide the candidate with some answer within seven days, if he is silent, does not give an explanation of the refusal, respectively, he is already violating the law.

At the same time, it should be noted that a number of companies receive hundreds of resumes - 600 or more - and the employer's HR department may not physically have time to consider the submitted resumes, and the candidate may perceive the "silence" of the employer as a refusal and require clarification. It turns out that the employer, having not yet begun to consider the resume of the candidate, is already obliged to provide explanations about the refusal. It is this moment that is not regulated in any way in the law and allows for a variety of interpretations. The new law amends Article 64 of the Labor Code of the Russian Federation. Employers will be held administratively liable for non-compliance with the new requirements.

If, for example, the applicant wrote to the general e-mail of the company with a request to explain the reason for the refusal, then the company is not obliged to respond to this request. And if he wrote to the e-mail that was indicated in the vacancy announcement, then the company is obliged to provide a response to the candidate. Also, a letter delivered by Russian Post or a courier service can be considered a candidate's requirement. Oral statements from candidates may not be considered as a requirement.

What does the employer need to indicate in the response about the reasons for the refusal? You can mention any reasons based on the inappropriate business and qualifications of the candidate. At the same time, it is strictly forbidden to indicate discriminatory reasons, which are indicated in Art. 3 of the Labor Code of the Russian Federation.

Also, you cannot refuse a candidate if the candidate is pregnant; if he turned out to be disabled and sent according to the quota of the employment service or invited by transfer from another company.

Under the new law, the employer bears judicial and inspection risks. In some cases, the company may be subject to criminal liability. In particular, for unreasonable refusal to hire and conclude an employment contract with a pregnant woman or a woman with children under the age of three years, for the head of the company or another person who is authorized to make a decision on employment. Article 145 of the Criminal Code of the Russian Federation provides for criminal liability: a fine of up to 200 thousand rubles. (or in the amount of wages or other income of the convicted person for a period of up to 18 months), compulsory work for a period of up to 360 hours.

Litigation risks are to be expected if a candidate successfully contests a denial of employment. By a court decision, an unreasonable refusal to hire can be recognized and, accordingly, the requirement for compensation for forced absenteeism and compensation for moral damage is satisfied. I am glad that the competence of the court does not include coercion to conclude an employment contract with a candidate under certain conditions. However, employers are not protected by law. In court, the most difficult thing will be to determine the candidate's compliance with the criteria put forward. Each individual judge will interpret, for example, such a concept as "work experience" in his own way. And if the employer refuses the candidate due to lack of experience, then the criterion is very controversial and can be interpreted in different ways. Now the employer needs to advertise with a very detailed description of the function of the position. However, for a number of companies, this in fact means the disclosure of trade secrets. And if you do not specify a detailed description of the vacancy, the risk of litigation increases accordingly. In the event of a court case, candidates can claim payment for forced absenteeism for the entire duration of the trial and compensation for non-pecuniary damage. In my practice, there was a case when a candidate filed a lawsuit for compensation for forced absenteeism and demanded an amount of compensation of 8 million rubles.

Inspection risk may arise if it is discovered that a written explanation of the reasons for the refusal was not provided within the stipulated time. Then a fine of 30-50 thousand rubles may be imposed.

To minimize risks and protect yourself from manipulators, I recommend that companies review the text of job advertisements. It is also necessary to make the requirements in the resume as detailed as possible. And also to create a local normative act that defines the admission procedure, and to acquaint candidates with it.

"Personnel. ru", 2010, N 8

HOW TO PROPERLY REFUSE A CANDIDATE FOR A JOB

Domestic legislation does not allow simply answering “no” to candidates who have not passed the selection. The refusal must be correctly executed and justified, otherwise there is a risk of a lawsuit: while lawyers advise how to avoid such an outcome in a long and legal way, HR managers give recommendations that radically “simplify” the task.

The reason for the emergence of questions about the competent refusal to the applicant are the guarantees established by the legislator within the framework of Art. 64 of the Labor Code of the Russian Federation. Firstly, the Labor Code of the Russian Federation recognizes as illegal the so-called unreasonable refusal at the conclusion of an employment contract. Secondly, even if the refusal to conclude an employment contract had every reason, it can be appealed by the candidate in court, and then all his circumstances will be examined very carefully.

It is traditionally believed that in domestic practice such litigations are almost absent. However, this is not the case. The situation of refusal to hire is commented in sufficient detail, including on the material of cases considered by the courts. In order to ensure the uniform application of labor legislation by the courts, the Plenums of the Supreme Court of the Russian Federation even issued clarifications (in particular, this problem is touched upon in paragraphs 10 - 11 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation"). True, it turns out that most personnel officers have developed somewhat simpler "protective mechanisms" that are noticeably different from the official ones. But first, what the law says.

Signs of failure

First of all, it is necessary to conditionally distinguish between legitimate refusals to hire on two grounds - legal and justified, as suggested by lawyer Igor Rodionov, who has extensive experience in resolving labor disputes.

Let's start with formal (legal) refusals, when the hiring of individual applicants is directly prohibited or limited by federal laws or other regulatory legal acts. The expert emphasizes that in this case, the employer does not need to justify the lack of the necessary business qualities of the applicant, but it is necessary to choose the right reason for refusal. It can be:

If a person applying for a job does not reach the age from which the conclusion of an employment contract is allowed (Article 63 of the Labor Code of the Russian Federation). As a general rule, this is 16 years, but it should be noted that in some cases an employment contract may be concluded with a younger person;

Failure by a person applying for a job to submit documents that, according to the Labor Code of the Russian Federation, must be submitted when concluding an employment contract (Article 65 of the Labor Code of the Russian Federation). At the same time, do not forget that in addition to those specified in the article, you can only require those documents that the candidate is required to present by virtue of other laws and other regulations, for example, the Law of the Russian Federation of 07.21.1993 N 5485-1 "On State Secrets", the Law of the Russian Federation of 10.07 .1992 N 3266-1 "On Education", Federal Law of 27.05.2003 N 58-FZ "On the system of public service of the Russian Federation".

There are grounds for refusing to hire individual citizens because of their age, gender, health status. However, they are based on the norms directly specified in the laws: Art. 253 of the Labor Code of the Russian Federation limits the use of women's labor in hard work and work with harmful and (or) dangerous working conditions, art. 265 of the Labor Code of the Russian Federation - the use in certain types of activities of the labor of persons under the age of 18, Art. 266 of the Labor Code of the Russian Federation establishes the mandatory medical examination for citizens under 18 years of age.

Decree of the Government of the Russian Federation of October 11, 2002 N 755 approved the List of objects and organizations in which foreign citizens do not have the right to be employed.

Decree of the Government of the Russian Federation of August 6, 1998 N 892 establishes the Rules for the admission of persons to work with narcotic drugs and psychotropic substances, which determine, among other things, persons who have the right to work with them.

Decree of the Government of the Russian Federation of April 28, 1993 N 377 approved the List of medical psychiatric contraindications for the implementation of certain types of professional activities and activities associated with a source of increased danger, which is the basis for a formal refusal.

So, when preparing a refusal in it, it is fundamentally important to indicate the relevant provision of the law or other regulatory act.

Such prohibitions with reference to a specific law make it easier for the employer, but can not always be used. Moreover, in practice they are even in the minority. “As for the other group - justified refusals, everything is not so simple here,” Anna Smekhova, a specialist in the personnel department of the Avarit industrial group, believes. “They are associated with the so-called business qualities of the candidate. By choosing this path, the employer justifies the refusal to hire their absence. And this has yet to be proved."

The definition of the concept of "business qualities" is given in paragraph 10 of the already mentioned Resolution of the Plenum of the RF Armed Forces dated March 17, 2004 N 2: "The business qualities of an employee should be understood as the ability of an individual to perform certain labor functions, taking into account his professional qualifications (for example, the presence of a certain profession, specialty, qualification), the personal qualities of the employee (for example, the state of health, the presence of a certain level of education, work experience in the specialty in this industry).

If the court establishes that the employer refused to admit due to circumstances related to the professional qualities of the employee, then such a refusal will be justified. After all, it is natural that he has the right to present certain requirements to a candidate for a vacant position.

“And here the employer’s ability to correctly correlate the candidate’s business qualities with the requirements for this type of work comes to the fore,” lawyer Igor Rodionov emphasizes. “The most common justified reasons for refusing a job seeker are two formulations. firstly, the incomplete correspondence of the entry about the profession (position) in the applicant's work book with the one provided for in the employer's staffing table.Do not forget that it is the prerogative of the employer to approve and change the staffing table and he can exercise his right at any time.Secondly, the absence confirmation of the correspondence of the entry in the work book with documents on education.

Expert opinion. E. Roshchupkina, expert of the National Union of Personnel Officers

Almost daily, HR managers (or employees responsible for recruiting in a company) choose the “worthiest” candidate from several candidates and refuse the rest of the applicants. As a rule, this is done orally: in a personal meeting, immediately after the end of the interview, or a few days after the next stage - by phone.

However, situations may arise when an applicant for a vacant position requires the employer to provide a written refusal to conclude an employment contract. According to Art. 64 of the Labor Code of the Russian Federation, the employer is obliged to satisfy this requirement. Such a refusal must be motivated and justified, because in the future an unsuccessful candidate has the right to appeal against it in court. Please note that the labor law does not define whether orally or only in writing, the former applicant for a vacancy may request an explanation of the reason for the refusal.

Article 64 of the Labor Code of the Russian Federation prohibits an unreasonable refusal to conclude an employment contract. Such a refusal is considered to be a refusal associated with any direct or indirect restriction of rights or the establishment of direct or indirect advantages depending on gender, race, skin color, nationality, language, origin, property, social and official status, place of residence (including including the presence or absence of registration at the place of residence or stay), the presence of pregnancy, the presence of children, as well as other circumstances not related to the business qualities of the employee. In accordance with paragraph 10 of the Decree of the Plenum of the Supreme Court dated March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation", business qualities should, in particular, be understood as the ability of an individual to perform a certain labor function, taking into account his professional qualification qualities (for example, the presence of a certain profession, specialty, qualification), personal qualities of an employee, for example, the state of health, the presence of a certain level of education, work experience in this specialty, in this industry). Therefore, I do not agree with one of the points of view presented in the article regarding the "legality and validity" of a refusal to hire if the record of education (specialty) in the work book does not correspond to the title of the position for which the candidate is applying. Maybe this candidate, who graduated from vocational school in the 80s. as a locksmith, then went through a lot of advanced training courses, retraining and received additional skills, abilities and knowledge that fully meet the requirements of the employer? And how many negligent personnel officers do we have in our country who, due to their inattention or workload, do not have time to enter information about advanced training and obtaining a new specialty of simple "hard workers" in work books? Therefore, do not rush to refuse on this basis, because the applicant may have a lot of supporting documents that he is ready to submit.

Quite often applicants are refused due to negative recommendations from previous jobs. However, this is also not the best option. First of all, in order to collect recommendations about an applicant for a vacancy, it is necessary to obtain the written consent of the candidate himself, otherwise the employee’s rights are violated, guaranteeing the protection of his personal data (clause 4, article 86 of the Labor Code of the Russian Federation). And the candidate has the right not to agree to this condition. Therefore, "negative recommendations" as a justification for refusing employment can be appealed in court and the scandalous applicant will already be legally and without fail working at your enterprise.

When preparing a written response to the applicant’s request, your refusal should be motivated, for example, by the candidate’s insufficient work experience, inappropriate education (unless, of course, there are “crusts” confirming the knowledge necessary for the position), etc. As a rule, a justified refusal is issued on official letterhead of the organization and signed by an authorized person. And, of course, you can’t refuse candidates due to lack of registration, age criteria, gender, race, nationality, etc. The court will not always be on your side, which is confirmed by practice (see Judgment of June 10, 2002 N 1566 ), although there are exceptions (see the Judgment of September 21, 2005 in case No. 2-732).

The second point opens up very interesting prospects for the employer. The representative of the company has the right to doubt the authenticity of the entry in the work book, if it is not confirmed by documents on the education that is due in this case. And in our country, a huge number of citizens do not work in the specialty that they once studied. That is, a lot of people can be formally refused simply by referring to insufficient qualifications.

In addition, the employer has the right to present the applicant with such requirements as:

Work experience in the profession (specialty) of interest;

Knowledge of foreign language;

Computer literacy, etc.

However, it must be remembered that the verification of the necessary business qualities of the applicant can be carried out both through an oral interview and analysis of the documents submitted by the candidate, and through testing, questioning. At the same time, it is highly undesirable to include in such a test, if it is written, questions that are not related to the business qualities of a person (for example, about the availability of an apartment, a car, etc.), otherwise the content of the test may give grounds for invalidating it.

Don't mess up paper

The legislator orders the employer to issue a refusal in writing and transfer it to the failed employee. Such an obligation arises only if the candidate himself demanded to explain the reason for the refusal (part 5 of article 64 of the Labor Code of the Russian Federation). As soon as he receives such a paper, there is a risk of claims and litigation. Therefore, most personnel officers begin to build their "line of defense" even on the outskirts, using any pretexts to avoid issuing such a document.

“Rejection of a candidate is one of the most common working procedures for the recruiting department,” states Irina Perechneva, head of the recruitment department of the IVESTA trading company. “And, naturally, no one wants to write such an official paper to each person. We don’t write. And if the candidate himself asks to provide him with an official written refusal, then it is immediately clear: he is dissatisfied with something and, perhaps, will go to court. In this case, it is advisable to call the person for a conversation and persuade him not to start a "useless conflict." Often this incident and ends."

If the paper still has to be issued, then the employer has a relatively simple way out, which, however, can be safely recognized as "a game on the verge of a foul." So, in one jewelry company, they resorted to a little trick: a regulation was adopted on the selection of personnel, providing for the head of the division to fill out a special application to the personnel department for the selection of an employee. The manager indicates in the application the necessary professional requirements and other wishes, puts the date and signature. If the candidate requires a written refusal, you can safely refer to such an application and thereby appeal exclusively to the professional qualities that the person lacks. The trick is that, depending on the specific "refusenik", the application can be redone retroactively and include formal professional qualities that he, of course, will not have.

On practice.

Age Discrimination

05/19/2006 Yu. Stupko saw an advertisement in the newspaper that Talirs Plus LLC, which is engaged in casting, needs a chief accountant, went there to find a job. Yu. Stupko had a higher economic education, solid practical experience - he worked as an accountant for more than 20 years, including 15 as a chief accountant, and hoped to take a vacant position. An interview was conducted with him, and he was asked to wait a day for the result. The next day, he was given a written refusal to apply for a job, which stated that he "does not fit the age category." On June 16, 2006 Yu. Stupko appealed to the Magistrate's Court of the Leninsky District of Voronezh. The Justice of the Peace dismissed the claim. The appeal was considered by the Leninsky District Court. Given the existence of a written refusal to hire with reference to age, the court found the refusal illegal and ordered Talirs Plus to pay the plaintiff 290 thousand rubles. for material and moral damage. This amount was determined by the plaintiff: since he was not hired illegally, he began to count the loss of earnings from May 2006 to December 2007. It turned out to be 285 thousand rubles. In addition, the plaintiff asked for compensation for non-pecuniary damage in the amount of 100,000 rubles, but he was awarded only 5,000 rubles.

Since the debtor, represented by Talirs Plus, did not voluntarily comply with the court decision, the Federal Bailiff Service began work on the forced return of the debt, however, as it turned out, the company was not located at the place of registration. Now the service is searching for the company "in order to find property that, according to the law, can be foreclosed to pay off the resulting debt."

kp. ru/daily/24085/318243.

Denial of employment

in connection with the "shocking" appearance

The decision of the justice of the peace of the court district N 4 of the city of Kineshma, Ivanovo region V. V. Rumyantsev dated 09/21/2005 in case N 2-732 in the suit of F. against Stroykamen LLC (hereinafter referred to as LLC).

F. filed a lawsuit against the LLC to hire him as a handyman. The claims were motivated by the fact that on August 12, 2005, F. applied to the director of LLC O. with an application for employment as a laborer. The plaintiff presented O. the direction of the employment center (hereinafter - CZN). The director refused to hire him, explaining that he did not need workers. F. asked O. to write the refusal of employment in writing on a letter of recommendation. O. returned the letter of recommendation to him without giving a written answer in it, which is illegal, because, according to Art. 64 of the Labor Code of the Russian Federation, at the request of the person who was refused to conclude an employment contract, the employer is obliged to inform the reason for the refusal in writing. F. asks to oblige the LLC to hire him as a handyman.

The representative of the defendant O. did not recognize the claim and motivated his actions with the following arguments. He has a small business, and all questions about hiring are decided directly by him. The company does not have a staffing plan. The director personally hires workers of those specialties that are required at the time of the application. On August 12, 2005, F. came to the office of the enterprise to get a job as a laborer in the direction of the Central Health Center. The director was simply shocked by the appearance of F., since the plaintiff came to the employment negotiations in a skirt (male plaintiff). O.'s desire was to remove F. from the office where the women were located as soon as possible. At the time F. applied, the director at the enterprise had a vacancy for an electrician, but he had already selected a candidate for this job. He didn't need handymen. He did not write a written refusal to hire F. on the letter of recommendation, in which he admits his mistake. He believes that he took advantage of the employer's right to conclude or not to conclude an employment contract with a specific employee, and asks to dismiss the claim.

Having studied the case file, having heard the arguments of the parties, the justice of the peace decided to dismiss the claim for the following reasons.

The court established that the plaintiff F. has been registered with the Central Health Care Center of the city district "Kineshma" as unemployed since April 21, 2005, which is confirmed by a copy of the personal record card of a citizen looking for work N 111 015/0505, explanations of representatives of the Main Health Care Center of the city district Kineshma U. and P. On August 11, 2005, F. was given a letter of recommendation to apply for employment as a laborer in an LLC, where F. actually applied on August 12, 2005, which is confirmed by F.'s explanation, a copy of the letter of recommendation and not disputed by the representative of the defendant O.

The director of OOO O. refused to hire F. as a laborer due to the lack of vacancies at the enterprise. At the same time, the director of the LLC did not make a written record of the refusal to hire at the request of F., as well as under the terms of the letter of recommendation. This is confirmed by the plaintiff's explanation, a copy of the letter of recommendation, and this circumstance is also not disputed by the defendant's representative O.

The representative of the defendant O. gave the court an explanation of his refusal to hire, which lies in the fact that the employer has the right to hire workers at its own discretion and at the time of F.'s application for hiring him as a laborer, he did not need workers of this specialty.

According to Art. 64 of the Labor Code of the Russian Federation, an unreasonable refusal to conclude an employment contract is prohibited, and at the request of a person who is refused to conclude an employment contract, the employer is obliged to inform the reason for the refusal in writing.

The director of OOO O. refused to hire F. due to the lack of vacancies at the enterprise. The court regards this refusal as justified, since the plaintiff did not provide evidence to the court that it was unfounded, that is, that at the time of the plaintiff's application for employment, there really were vacancies at the enterprise. The plaintiff's assertion that he was denied employment due to his extraordinary appearance is not accepted by the court, since the plaintiff has not presented convincing evidence of this.

The representative of the defendant O. in his explanations showed that he was really shocked by the appearance of F., but he refused to hire him due to the lack of vacancies at the enterprise.

Clause 10 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" contains an explanation that when considering labor disputes related to refusal to hire, in order to optimal harmonization of the interests of the employer and the person wishing to conclude an employment contract, and taking into account the fact that, based on the content of Art. 8, part 1, art. 34, parts 1 and 2 of Art. 35 of the Constitution of the Russian Federation, para. 2 hours 1 tbsp. 22 of the Labor Code of the Russian Federation, for the purpose of efficient economic activity and rational property management, the employer independently, under his own responsibility, makes the necessary personnel decisions (selection, placement, dismissal of personnel) and the conclusion of an employment contract with a specific job seeker is a right, not an obligation of the employer.

Violation by the employer, in this case, the director of LLC O., of the requirements of Art. 64 of the Labor Code of the Russian Federation regarding the failure to report, at the request of the person who was denied employment, the reasons for the refusal in writing, the court considers a circumstance that does not significantly affect the essence of the dispute under consideration.

In view of the foregoing, and also taking into account that during the trial it was established that the director of the LLC refused to hire the plaintiff on the grounds that there were no vacancies at the enterprise, which was not refuted by the plaintiff, the court concludes that in F.'s claims should be denied.

atheist. spb. ru/stkm/stkm. htm.

Yekaterinburg

Signed for print

Recruitment and selection, Labor market

Keywords:

1 -1

The citizen responded to the vacancy "Chief Accountant" posted by the organization on the website hh.ru. The potential employer reviewed the resume, but refused to cooperate without explanation. The applicant decided to find out why his candidacy did not fit, and demanded a written justification for the refusal to hire.

But the mail message that the citizen sent came back. In fact, the organization refused to give explanations, which the applicant regarded as a violation of the requirements of the law, in particular, an unreasonable refusal to hire, prohibited Art. 64 Labor Code of the Russian Federation. He went to court, demanding that he be officially employed, paid compensation for the time of forced absenteeism and moral damage.

Court reaction

The claim was considered first by the Ostankinsky District Court of Moscow, and then by the Moscow City Court as an appellate instance (Appellate ruling dated April 16, 2018 in case No. 33-11357/2018). In both cases, the judges recalled that the restriction of rights or the establishment of advantages in concluding an employment contract, depending on various characteristics and circumstances, is unacceptable if certain requirements are not contained in the legislation. At the same time, personnel decisions regarding the selection of personnel are the prerogative of the employer. Therefore, the conclusion of an employment contract with a specific job seeker is a right, not an obligation of the organization.

The judges also drew attention to the fact that it does not contain norms obliging the employer to hire people for vacant positions or jobs immediately. Therefore, in each individual case, it is necessary to check whether the company reported on available vacancies (message to the employment service authorities, in the media, on the bulletin board), whether there were negotiations on hiring with a specific person, on what grounds he was refused to conclude an employment contract .

Given that the person who submitted a resume for a vacancy posted on the hh.ru website was immediately refused, and negotiations were not conducted with him, the employer is not obliged to explain why he refuses to conclude an employment contract with him. There is no other evidence of an appeal to the employer with a requirement to conclude an employment contract in the case under consideration. On this basis, the courts dismissed the claims.

Please note that this is not the first decision in favor of employers. The Appellate Ruling of the Moscow City Court dated May 30, 2014 in case No. 33-17864 / 14 contains a similar conclusion: if the applicant is rejected at the stage of consideration of the resume, it is not necessary to explain to him the reasons for the refusal to conclude an employment contract.

When will you have to give written explanations about the refusal of employment

Everyone understands that an unreasonable refusal to conclude an employment contract can be challenged in court, and the employer is punished. However, in Art. 64 Labor Code of the Russian Federation where the ban is written, references are made to such features as:

nationality;
race;
the presence of children;
age;
social and family status;
pregnancy;

a written invitation to work in the order of transfer from another employer;
other circumstances not related to the business qualities of employees.

But this is only an approximate list of reasons why an employer does not have the right to refuse to hire an applicant. Therefore, the question of whether there was discrimination in the refusal to conclude an employment contract is decided by the court when considering a specific case.

At the same time, judicial practice shows that a refusal to hire after an interview can already become the basis for a requirement to explain in writing the reasons for the refusal, if the violation actually took place (see, for example, the Appeal ruling of the St. Petersburg City Court dated September 12, 2017 No. 19103/2017 in case No. 2-1140/2017).

What is the possible punishment

In addition to the requirement to conclude an employment contract with the applicant, an employer may be held liable for an unreasonable refusal. It is subject to a warning or fines. For officials, they range from 1,000 to 5,000 rubles, for legal entities - from 30,000 to 50,000 rubles.

“Cadres decide everything”, but for this they need to be correctly selected. In order to hire a suitable employee, it is necessary to make an additional selection and, as a result, screening. The principle of freedom of an employment contract gives the employer the right, and not the obligation, to conclude it with one or another applicant, forming staff at his own discretion. Rejection of candidates is an indispensable part of this process.

How to say "no" without conflicting with the law, avoiding accusations of discrimination?
What threatens the employer for an unreasonable refusal proven in court?
What language should be avoided when writing a rejection notice in writing?

These and other questions that arise when points of view on a vacancy do not coincide are discussed in this article.

The law protects, prohibits and obliges

Personnel formation is almost the only area of labor law where the employer feels more or less free and protected in relation to employees, or rather, to those who only want to become them. The Labor Code of the Russian Federation does not say anything about the fact that the employer is obliged to immediately fill the vacancies that have appeared or formalize labor relations with certain specific persons.

However, the Constitution and the Labor Code of Russia proclaim the principle of freedom of labor, which guarantees citizens the possibility of an unlimited choice of type of activity and the use of the ability to work (Articles 3-7 of the Constitution of the Russian Federation, Article 2 of the Labor Code). On March 17, 2004, the Supreme Court of the Russian Federation adopted a resolution on equal opportunities in the formalization of labor relations. This right is duplicated in Art. 64 of the Labor Code, which expressly prohibits discrimination in employment on any grounds other than professional and specified in federal law.

REFERENCE! Provisions on discrimination in the sphere of labor were regulated as early as 1958 in 1 Art. ILO Convention No. 111 and enshrined in Art. 19 of the Basic Law of the Russian Federation and Art. 3 of the Labor Code of the Russian Federation. When determining the professional and labor qualities of a candidate, employers are guided by the decision of the Plenum of the RF Armed Forces of March 17, 2004 No.

The latest legislative innovation is the norm of the labor law (Article 64 of the Labor Code of the Russian Federation), which obliges the employer to explain the reason for the refusal to the applicant for a vacant position and, at the request of the latter, provide a refusal in writing within a week.

Legal grounds for refusing a job applicant

The reasons that any authority deems legitimate for refusal can only be related to the professional qualities of the candidate or to personal ones that can affect the quality of future activity. It is these reasons that should be stated in the written notice of refusal, which will be considered reasonable.

IMPORTANT! It does not matter what motivated the personnel officer to reject the candidate: the lack of the required diploma, a tattoo or too avant-garde hairstyle of the applicant, the presence of a criminal record. The wording should not contain discriminatory statements, so only a reasonable reason should be stated.

The legal grounds for refusing a candidate are as follows.

Inconsistency of the qualifications of the applicant for the vacant position (confirmed by the lack of supporting documents, revealed at the interview or during the probationary period).
Lack of knowledge, experience or skills necessary for future activities (confirmed by documents, recommendations, interviews, testing, tests, etc.)
Health condition unsuitable for this vacancy (confirmed by medical documents).
No suitable vacancies at the time of application (to be confirmed).
Psychological discrepancy (confirmed by testing, interview, probationary period).
Age reasons due to the Labor Code: some positions cannot be occupied by minors and persons who have crossed a certain line (Article 63 of the Labor Code).
Injunction against holding certain positions.
Candidate's unwillingness to undergo a probationary period.

FOR YOUR INFORMATION! If the candidate was interviewed by a person who is not authorized to hire, then a positive outcome may be considered unlawful, and the refusal, on the contrary, justified.

Who can't be denied

If none of the above reasons is given, the refusal may be considered discriminatory and even challenged in court.

INFORMATION! If the court turns out to be on the side of the unfairly unemployed, the manager may face a fine of 30-50 thousand rubles, stop the activity of the enterprise for up to 3 months, and in cases with pregnant women and mothers - criminal liability.

Reasons for refusals that are illegal and sometimes resorted to by employers are listed below.

Any signs not related to professionalism: skin color, nationality, political affiliations, adherence to religion, etc.
Lack of registration at the place of residence or location of the place of work.
Membership or lack thereof in a trade union organization.
Status of HIV-infected.

Unconditional Candidates

It is unlawful to refuse to hire certain categories of candidates:

pregnant women and mothers;
disabled people assigned to a position according to a quota;
passed through the competition;
those who are employed in the order of transfer (within a month from the moment of leaving the previous position).

Correct rejection

For those who hope to get a job, it is always unpleasant to say “You are not suitable for us”, but often this is a necessary duty. Here are some ways to inform the candidate that his expectations were not met.

Silence is a sign of refusal. A common way is to promise to call the applicant back after the interview in case of a positive decision. The absence of such a call will automatically let the person know that he was not accepted. If an unsuccessful applicant asks for a reason for refusal, the employer should do so, but this rarely happens in practice.
Legal notice by mail or electronic form. When making such mailings, the employer needs to be very attentive to the wording of the reason for the refusal. Most often, the candidate is thanked for his attention to the organization, they are informed that the vacancy has been filled by another, and in the end they wish them further success.
verbal "no". The most unpleasant way for HR managers. A negative decision can be communicated in person or by phone. Sometimes it is softened with a phrase about the possibility of employment in the future if circumstances change.

NOTE! It is not necessary to tell the applicant the true reason for the refusal. If it does not apply to legally legitimate, and if it is required to formulate it in writing, you should try to justify the refusal with a legally permitted reason.

How to write a letter of refusal to hire an employee

The document, the demand of which is recognized as imperative for the employer (Article 64 of the Labor Code of the Russian Federation), must be drawn up very carefully, since it can serve as evidence in litigation. When filing a denial of employment, make sure that it certainly contains the following items:

name and details of the organization (it is possible to issue it on letterhead);
outgoing number (the document is being registered);
a clear statement of the reasons for refusing employment with legislative justification;
visa of the head or head of the personnel department, certified by the appropriate seal.

Refusal to hire due to a criminal record

If an unsuccessful applicant asks the employer to state the reason for the refusal in writing, the latter is obliged to do this (Article 64 of the Labor Code of the Russian Federation). Notice must be given in writing within 7 days of receipt of such request. An employer who fails to comply with this requirement on time may be held liable.

It is necessary to draw up such a document very carefully, because it can become the subject of litigation.

A candidate's criminal record is not an unconditional sign that can serve as a legitimate justification for refusing employment. Only certain positions require its mandatory absence in the biography of the candidate: those related to financial responsibility, information technology, with certain articles - with pedagogical activities, as well as with service in the internal affairs bodies. In all other situations, it would be legally illegal to indicate a criminal record as the reason for refusing employment in the notice.

ATTENTION! For notification, you need an official form of the organization or an indication of all its details. The failure is logged as outgoing documentation. As in any legally significant document, the handwritten signature of the head, affixing the date and seal, if applicable, is required.

Lingvogeny LLC
Ref. No. 12/156
from 18.09.2017
Raskidailov P.I.,
Yekaterinburg, st. Academician Postovsky, 12, apt. 28

NOTIFICATION
Dear Petr Ivanovich!

Thank you for appearing for an interview at Lingvogeny LLC on 09/11/2017. We regret to inform you that we are forced to refuse employment for the position of a German language teacher in the middle age group in our training center.

According to the provided certificate, you have a criminal record under Art. 116 of the Criminal Code of the Russian Federation, relating to the categories of crimes against life and health. Despite the fact that you were not convicted, the investigation was closed on non-exonerating grounds. Labor Code of the Russian Federation in Art. 331 "The right to engage in teaching activities" prohibits persons with such a criminal record from being allowed to work with underage students.

General manager
Lingvogeny LLC /Prokhorov/ V. V. Prokhorov

Refusal to hire due to downsizing

Reducing the number or staff of an enterprise is a rather delicate procedure from the point of view of law. Some employees are fired, while there can be no talk of hiring other personnel for these positions, otherwise the reduction will be illegal.

However, it may well be that due to the “redrawing” of the staff list, other positions appear, or during the reduction, certain vacancies open up, and candidates want to fill them.

IMPORTANT! Former employees of the company, dismissed due to staff reduction, have priority in employment. First of all, the vacancies that have appeared should be offered to them. Only if a refusal in writing has been received from them, recruitment among strangers can be announced for these positions.

In the event that a downsizing worker has refused existing vacancies and was fired, and then wants to get a job in one of the newly formed vacancies, he will also have priority over other applicants. Although it is important to remember that the employer is not required to inform a previously dismissed employee about a vacancy.

In any case, staff reduction cannot in any way be among the independent legitimate reasons for refusing to conclude an employment contract.

Denial of employment due to merit

Such a reason for refusal is certainly legitimate. The employer has every right not to hire an employee who does not meet the requirements for the position for which he is applying. If employers mask with this wording the true reason for not wanting to enter into an employment relationship, which is not legitimate, the non-compliance with business qualities must be documented.

According to the rules of business documentation, when issuing a refusal, you must adhere to the following requirements:

draw up a document on letterhead or indicate the necessary details of the organization;
register an outgoing document indicating the method of delivery to the addressee (in person against signature or by registered mail with notification);
justify non-compliance with business qualities with the requirements of the job description or labor legislation;
fix the document with the signature of the managing person and the seal of the organization.

Below is an example of compiling a rationale for refusing employment due to a mismatch of business qualities

Pishchepromavtomatika LLC
Ref. No. 14/118n
from 08.06.2017
Petrikovskaya E.S.,
Samara, st. 1st Beloretskaya, 3, apt. 11.

Dear Elena Sergeevna!

In response to your request dated June 2, 2017, to substantiate the reason for refusing employment in accordance with Part 5 of Art. 64 of the Labor Code of the Russian Federation we report the following.

The director of Pishchepromavtomatika LLC, by order No. 14 dated 06/15/2015, approved the job description of the head of the marketing department, which implies higher specialized education and fluency in English.

From the documents you provided at the interview, it can be seen that you received a secondary specialized education in the specialty "economist", and also graduated from non-specialized foreign language courses. During the interview, it was revealed that your level of English is lower than necessary for fluent communication. In addition, secondary specialized education is not enough to occupy this position.

Due to the inconsistency of your business qualities with the requirements stipulated by the job description, Pishchepromavtomatika LLC is forced to refuse to conclude an employment contract for this position.

Part 6 Art. 64 of the Labor Code of the Russian Federation allows you to appeal this refusal in court.

General manager
Pishchepromavtomatika LLC / Lissitzky / S. N. Lissitzky

Cancellation for health reasons

The state of health is an integral part of the business qualities of a job seeker. This is how the Decree of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004 interprets it. Not for all professions, a medical examination during employment is mandatory, but for a number of positions and categories of employees it is provided without fail. This applies to the types of work listed in Art. 213 of the Labor Code of the Russian Federation (work in transport, in children's, educational institutions, catering, etc.), as well as for minors who are employed. The employer must be convinced that, allowing the applicant to work, he will not harm either his health or the health of people in contact with him in the course of work.

Art. 253 and 265 of the Labor Code of the Russian Federation justifies the possible discrepancy between the physical or mental health of a candidate for a vacant position, and Art. 266 regulates the obligation of medical documents as part of the package for employment.

When refusing due to non-compliance with health requirements, the employer must prove that they are presented exactly for the position that the candidate wanted to get, and are confirmed by legislative provisions, for example, a medical certificate.

Below is an example of a letter of justification for the reasons for refusal of employment related to health conditions

LLC "Golden Key"
Ref. 34/12
dated 11.07.2017
Raynovsky A.L.,
Moscow, Lyalin lane, 8, apt. 10

About the reasons for refusal to conclude an employment contract
Dear Anton Leonidovich!

In response to your written request dated 07/09/2017 to substantiate the reasons for refusing employment for the position of a pizza master at the Zolotoy Klyuchik cafe, we report the following.

Labor Code of the Russian Federation in Art. 213 requires a mandatory medical examination to work in public catering organizations. The requirements for the vacancy, posted in the media and on the Internet, indicated the requirement for the candidate to have a certificate of medical examination in the form 086-y. During the interview, you did not provide this document.

In accordance with the requirements h.1 Article. 213, the package of documents submitted by you during the application is incomplete. On this basis, we refuse you employment.

According to Art. 64 of the Labor Code of the Russian Federation, you can appeal this refusal in court within 3 months.

General manager
LLC "Golden Key" / Limonova / L. D. Limonova

Denial of employment due to lack of registration

Employers in the formation of staff have the right to give preference to candidates of their choice. Often the decisive factor is the presence or absence of registration at a particular place of residence. However, this reason cannot be grounds for refusing to enter into an employment relationship. In Art. Part 2 Art. 64 of the Labor Code of the Russian Federation expressly states that the presence or absence of registration at the place of residence or location is not related to the business qualities of the candidate. Therefore, it is not considered as a factor that can affect employment.

Legally, such a refusal would be unlawful, discriminatory, which means that an unfairly offended applicant may well go to court to appeal it.

A person who has been refused may well require a written justification of the reason, possibly for appeal in court. The employer has no more than 1 week to do this. Delay is also fraught with liability.

Even if the reason why the applicant was denied is indeed related to his registration or its absence, the employer should not formulate it in this way. The law does not allow discriminatory grounds for refusing potential employees, therefore, an employer who wrote this reason in a notice of refusal is violating labor laws.

Refusal to apply for a job due to lack of experience

The work experience is part of the business qualities and personal qualities of the future employee (clause 10 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004). When announcing a vacancy, the employer indicates the requirements for the position based on labor legislation or internal regulations that do not contradict it (for example, an order approving a job description). Some positions require a certain number of years that the candidate has worked in similar or less responsible positions.

The length of service of a potential employee is reflected in his work book, which must be provided as part of the package of documents upon employment. The hiring person will easily be able to verify whether the work experience is suitable for a particular position.

If the candidate has the necessary work experience and indicated this in the resume, and at the interview it turns out that this experience is not confirmed by entries in the work book, the refusal will be quite reasonable.

OOO "Derevo-Style"
Ref. No. 16
April 06, 2017
in response to a statement dated March 30, 2017
ON THE. Lesnikov,
Voronezh, st. Abrikosovaya, 67, apt. 14

NOTIFICATION
Dear Nikolai Andreevich!

In response to your written request on March 30, 2017 with a request to substantiate the reasons for the refusal to hire, in accordance with Part 5 of Art. 64 of the Labor Code of the Russian Federation we inform you of the following.

You have been denied an employment contract with LLC "Derevo-Style" due to your lack of the necessary work experience provided for by the job description of a carpenter-machine operator in effect at "Derevo-Style" LLC. This instruction No. 18 was approved by the director of Derevo-Style LLC on May 14, 2015. Clause 2.2 of the job description states that in order to occupy the position of a carpenter-machine operator, it is necessary to have a specialized secondary education in this profile and work experience in a similar position for at least a year. The data from the work book you provided indicates that you have not held similar positions, since you are finding a job for the first time.