Reasons and responsibility of the employer for refusing to hire

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What are the legal and unlawful reasons for refusing to hire, can the employer be held liable for an unjustified refusal – in the material of “Kommersant”.

According to the norms of the Constitution and the Labor Code of Russia (Labor Code of the Russian Federation), a citizen has the right to choose his own work activity and place of work in accordance with their desires and abilities, and in employment – to count on equal rights when concluding an agreement with an employer, regardless of religion, status or position.

In turn, in the resolution of the plenum of the Supreme Court of Russia dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” it was established that the employer has the right to independently, under his own responsibility, make personnel decisions for the purpose of effective economic activity and rational property management, namely, to carry out the selection of personnel, their placement and dismissal.

Reasons for refusing to hire

Among the many legal grounds for not hiring a job seeker, there are:

  • lack of documents required for employment;
  • the applicant lacks a certain education, qualifications and other professional qualities;
  • lack of certain personal qualities that allow performing labor functions in accordance with the established professional requirements for this type of activity;
  • the presence of the conclusion of the medical commission on the state of health of the candidate, which does not allow him to occupy a certain position;
  • presence of professional disqualification.

There are also unlawful reasons for refusing to hire, related to manifestations of discrimination, including in the field of race, age, sex, nationality, religion, attitude to elections and political position, disability, HIV infection, the presence of a court decision on the job placement, the lack of registration in the region where the employer was position as a result of competition, etc.

There are preferential categories of citizens who employment cannot be refused in accordance with Art. 64 of the Labor Code of the Russian Federation:

  • pregnant women;
  • mothers or fathers raising a child alone if they are the only breadwinners;
  • candidates at the invitation of the organization who have already quit their previous job.

Quite often, a citizen is denied employment if there is information about his past criminal record. According to experts, today such information is obtained quite simply. There are many databases on the market that, although they do not contain the entire array of information on convictions in real time, allow you to get fairly fresh information about a specific person.

Honored Lawyer of Russia, Doctor of Law Ivan Soloviev:

“The appeal to the actual databases of operational records can be sideways for those who are looking for such information, and extract, and provide it. Any entry into the database is recorded, therefore, by the name of the person who is “punched”, it is possible to establish from which workplace it was done, to identify the employee and bring him to justice. In general, such a refusal to hire in most cases is caused by the employer’s only motivation – to play it safe. However, for a citizen, this is a violation of his rights, since for the law and society, a person with an extinguished criminal record is considered not convicted. Therefore, the stigmatization (“stigmatization”) of a person that occurs in such cases leads to the fact that he not only cannot get a job, but also returns to the path of breaking the law, resumes criminal behavior in order to simply eat and live elementary. Moreover, according to Art. 64 of the Labor Code of the Russian Federation, a refusal to hire must be clearly worded. In the same case, personnel officers come up with other reasons for refusal, not related to the presence of a criminal record. “

Responsibility for unjustified refusal

Guilty person for wrongful refusal to hire can be brought to disciplinary, administrative and criminal liability:

  • disciplinary liability means a reprimand, remark or termination of an employment contract with an official guilty of unlawful refusal;
  • administrative responsibility, according to Art. 5.27 of the Administrative Code of the Russian Federation, imposed in the form of a fine in the amount of 5 thousand rubles. for an official or from 30 thousand to 50 thousand rubles. to the organization. In addition, it is possible to suspend the activities of the organization for up to three months;
  • an employer who has refused employment to pregnant women or candidates with children under three years of age is prosecuted. As a rule, this is a fine of up to 200 thousand rubles. or in the amount of the salary or other income of the guilty person for a period of up to one and a half years. Also, the guilty person may be assigned compulsory work (up to 180 hours).

Is it possible to dispute the refusal to hire

Despite the fact that the recruitment procedure is more often of a consensus nature, a citizen can challenge the refusal in court, but the courts in such cases (except if the citizen belongs to privileged categories) rarely take his side, giving employers almost complete freedom actions in this matter. If a citizen decides to appeal against a refusal to hire, experts advise first of all require the organization’s personnel department to provide a reasoned refusal in writing, which he can get in person or ask to send it by letter with an attached inventory and notification.

According to Art. 3 of the Labor Code of the Russian Federation, a person who believes that he has been discriminated against by the employer when hiring has the right to demand in court the elimination of this violation, as well as compensation for damage and compensation for moral damage.

In 2008, Kommersant reported on the first case in Russian judicial practice, when a citizen obtained compensation for refusal to hire for “age reasons”. According to the court decision, the employees of the FSSP were to collect 290 thousand rubles from a certain Tarlis Plus LLC. in favor of 59-year-old Yuriy Stupko, whom the company refused to employ due to the fact that he “does not fit in the age category”.

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