Student agreement with maximum responsibility. Issues related to concluding a student agreement. Probation period for a former student

There is no clear definition of an apprenticeship agreement in the Labor Code of the Russian Federation, but the legislation establishes with whom and in what cases an organization can enter into such an agreement, namely:

• when it comes to retraining an existing employee of an organization on or off the job;
• when a job seeker is sent for training.

In practice, HR specialists interpret the provisions of the Labor Code of the Russian Federation differently. There is, for example, a point of view that a student agreement can only be drawn up for internal forms of training, and is not suitable for attracting an educational institution.

Another controversial point is the nature of the relationship between the employer and the trainee, with whom an employment contract has not yet been concluded. A number of specialists rely on a letter from the Federal Social Insurance Fund of the Russian Federation dated June 11, 2003, which states that “a student agreement with a job seeker is civil and regulated by civil law.” To resolve the issue, it is proposed to conclude an employment contract with such a person first, and only then a student agreement.

“In my opinion, everything in the Labor Code is quite transparent. The use of the apprenticeship agreement is in no way limited to internal training. On the contrary, the result of apprenticeship should be the assignment of qualifications with the issuance of relevant documents. This can only be done by institutions and organizations that have the appropriate license.

As for the contract with a person who is not yet an employee of the company, I think it is correct to note that it is subject to the provisions of both the Civil and Labor Codes. Student agreement in this case, it is of a mixed nature, the Civil Code of the Russian Federation allows this (clause 3 of Article 421 of the Civil Code of the Russian Federation). When sending an existing employee for training/retraining/upgrading, companies most often conclude with him not a full-fledged apprenticeship contract, but an additional agreement to the employment contract,” explains Irina Savelyeva, head of HR projects at SKB Kontur.

Who can become a student?

Most often, organizations send for training those who, by the nature of their activities, are obliged to improve their qualifications. These categories include, for example, employees of internal affairs bodies, government civil servants, medical and pharmaceutical workers.

The need to retrain employees may be caused by production needs, such as changing equipment or transferring an employee to another area of ​​work. In both cases, the employer is required to pay for the training.

It happens that an employee himself expresses a desire to improve his qualifications and undergo training in one or another program. The employer can meet halfway and pay for the training in full or discuss the terms of refund with the employee. This could be, for example, partial compensation from salary or working at an enterprise for a certain period. The agreements must be recorded in the additional agreement to the employment contract.

The uniform form of the student agreement has not been approved, but the Labor Code of the Russian Federation specifies requirements for its content (). The contract must indicate:

• names of the parties;
• the qualification acquired by the student;
• the employer's obligation to provide the employee with training opportunities;
• the employee’s obligation to undergo training and, in accordance with the acquired qualifications, work under an employment contract with the employer for the period established in the apprenticeship contract;
• duration of apprenticeship;
• payments during the apprenticeship period.

Please note: it is important to include all points, otherwise the employee will have the right to challenge the contract in court.

Names of the parties

In the preamble of the agreement, indicate the name of the organization, full name of the responsible person and the document on the basis of which this person acts on behalf of the organization (charter, regulations, power of attorney). The Labor Code of the Russian Federation does not allow employers - individuals or individual entrepreneurs - to conclude a student agreement - only legal entities.

The second party to the contract will be the student, that is, an employee or a person who plans to find a job in this organization. For trainees - foreign citizens clarify the regime of their stay in Russian Federation. The educational institution where the employee will study may act as a third party to the contract.

Subject of the agreement

In the subject of the agreement, indicate the selected program, educational institution (if it is not included in the preamble) and the form of training, the list of which is not limited in the Labor Code. In addition to individual, team and course training, you can choose some other form that is more suitable for your goals.

Indication of the acquired qualification

Its name must correspond to the Unified Tariff and Qualification Directory of Work and Professions of Workers / the Unified Qualification Directory of Positions of Managers, Specialists and Employees or the register of professional standards. We remind you that the system of professional standards and ETKS are of equal force; the employer himself determines which system to focus on.

Rights and obligations of the parties

Depending on the chosen form, the organization must provide the employee with the opportunity to undergo training: pay for educational services, establish an appropriate work schedule if study occurs in parallel with work, exempt from business trips or overtime work, etc. Do not forget that according to the Labor Code of the Russian Federation, training time is during the week should not exceed the working time standards for workers of a given profession and age. This is especially important if the employee studies on the job.

An important point is the employer’s obligation to provide the employee, upon successful completion of professional training/retraining, with a position according to the qualification obtained, with the conclusion/change of an employment contract.

At the same time, you can include in the contract the right to monitor the student’s progress.

We recommend that you specify the rights and responsibilities of the employee in as much detail as possible. Some of them will concern academic discipline(attend classes, pass certifications in a timely manner, complete assignments, etc.), the rest - the conditions for working out the funds spent by the organization on training. If a student agreement is concluded with a person who is just planning to get a job, it will be mandatory to sign an employment contract with the employer and work for at least a certain time.

The working period is determined by agreement of the parties. Most often, of course, the terms are dictated by the employer, based on the cost and duration of training or the value of the future employee to the company.

Apprenticeship duration

Depending on the duration of the course, the validity period of the student contract is determined. The apprenticeship period may be extended if this is due to the student’s prolonged illness, military training, and in other cases provided for by the legislation of the Russian Federation.

It is also worth specifying the conditions early termination agreement. This may be a dishonest attitude towards training - absenteeism without a good reason, unsatisfactory results of certifications, or there may be medical contraindications to the performance of certain job functions.

If the student own initiative interrupts studies or does not begin work upon completion, the organization has the right to demand the return of funds transferred to the educational institution and paid in the form of a scholarship.

Amount of payment during the apprenticeship period

In addition to fully or partially paying for the training, the employer must pay the student a stipend. Its size is determined depending on the duration of training and the qualifications obtained. The Labor Code puts forward the only requirement: the scholarship cannot be lower than the minimum wage.

In a situation where training occurs on the initiative of the employee and is not tied to mandatory certifications, employers most often resort to the form of an additional agreement to the employment contract, which does not oblige the payment of a stipend.

If training takes place on the job, the employer, in addition to the stipend, pays the employee a salary in proportion to the time worked. In addition, according to Art. According to the Labor Code of the Russian Federation, work performed by students during their studies is paid by the employer at approved rates.

The student agreement is not the most common document in work personnel services. Organizations resort to it infrequently due to the unclear nature of the relationship between the employer and the potential employee. Sometimes employers cannot understand the procedure for calculating the scholarship and taxes on it. However, there is no need to be afraid of the student agreement. A well-drafted document is a guarantee that funds will be spent on the development of personnel, and therefore the entire organization.

The student agreement is one of the contracts that are regulated by labor legislation. It is worth noting that he is neither labor nor civil employment contract. This type agreement (student) can be concluded either with an individual who is looking for work and has not yet been hired, as well as with already working employees of the company.

A student agreement with a job seeker (you will find a sample at the end of the article), as well as an agreement with an employee, can only be concluded by organizations. According to labor laws, individual entrepreneurs cannot enter into a student agreement.

Student agreement (sample)

This type of agreement does not have an approved standard form - the Labor Code defines only some requirements for its content. Therefore, an apprenticeship agreement with an employee is drawn up in free form, but must include everything necessary conditions listed by labor legislation. So, the content of the student agreement should include:

• names of the parties (full name of the employer and full name of the student);
• determination of the specific qualification that the student must acquire as a result of training;
• the apprenticeship contract contains the employer’s obligation to provide the employee with all conditions for training;
• the employee’s obligation to complete training and, in accordance with the advanced qualifications obtained, to work under an employment contract in the employing company for the entire time period specified in the apprenticeship agreement;
• the period for which the apprenticeship contract is concluded with an employee of the enterprise;
• payment during the employee’s training period (how much the scholarship will be, as well as tariffs for the work that the employee will perform during practical training, if such classes are planned to be during the training process).

In addition, the sample student agreement may contain many other conditions that were determined by the parties. For example, the deadlines for the student to pass exams confirming qualifications, the schedule of theory classes, the number and time of practical work, etc. At the same time, the additional conditions contained in the student agreement with the employee must not contradict the law, otherwise they will not be valid. The employer should remember that such conditions cannot be applied, regardless of whether they were specified in the apprenticeship agreement or not.

Thus, the form of an apprenticeship agreement with an employee is developed by the employer independently, taking into account the information that should be contained in the document.

Providing employee training

If we talk about employee training, the employer needs to take a number of measures to ensure its effective completion. An apprenticeship agreement with an employee of an organization is a certain obligation that the employer undertakes. Thus, if an employee has to undergo training outside of his place of residence, the employer must pay the employee’s housing and other expenses associated with this condition. If an employee undergoes off-the-job training, he must be assigned a place of work for the duration of his training.

Student agreement, tuition scholarship

During the training period, the company is obliged to pay a stipend to students. Its size should not be below the minimum living wage. The amount of the scholarship is determined by the contract and does not depend on mistakes made during practical classes. That is, if a marriage is admitted during practical classes, the scholarship cannot be reduced.

The apprenticeship contract is concluded for the period necessary for the employee to obtain the required qualifications. However, this does not mean that the deadline can not be specified: it is necessary to indicate real time which the employee will need for training. During the period when the student employment contract is in force, by agreement of both parties, the employer and the student have the right to change its content, including the terms of the term.

The employer draws up two copies of the student agreement. One copy is given to the student, the other remains in the company with the employer.

Termination of the student agreement

In general, the apprenticeship agreement terminates from the moment its purpose has been achieved, that is, the training has been completed. In addition, labor legislation provides for the possibility of terminating an apprenticeship contract on the grounds that the parties included in such an agreement. Can be called the following reasons termination of the student contract: for example, frequent failure to attend classes without good reason (absenteeism), poor results in passing intermediate certification student, etc.

Above, we indicated that concluding a student agreement is possible both with an applicant and with a company employee. In the latter case, the basis for termination of the training contract will also be the termination of the employment contract with the student - with termination labor relations The training of the employee is also terminated between the parties.

Student agreement, taxation: there is no need to withhold personal income tax from amounts paid by the company for employee training, which is carried out in his interests (subject to compliance with the requirements tax legislation). There is no need to pay insurance premiums for employee training fees.

If employee training is carried out in the interests of the company, it has the right to take into account when calculating income tax the costs of training employees, as well as the costs of feeding the employee during his training, travel and accommodation, etc.

An apprenticeship agreement is an agreement on vocational training or retraining. Employer - legal entity(organization) has the right to conclude with a job seeker an apprenticeship agreement for vocational training, and with an employee of this organization - an apprenticeship agreement for vocational training or retraining on-the-job or off-the-job (Article 198 of the Labor Code of the Russian Federation).

At the same time, an apprenticeship agreement with a job seeker is civil and regulated by civil law, and an apprenticeship agreement for on-the-job retraining is additional to the employment contract and is regulated by labor legislation.

An apprenticeship contract with an employee of an organization can be concluded on the following conditions:

• with a break from work;
• without interruption from work.

In accordance with Art. 206 of the Labor Code of the Russian Federation, the terms of the student agreement should not contradict the Labor Code of the Russian Federation or agreements.

According to Art. 199 of the Labor Code of the Russian Federation, the student agreement must indicate the following:

1. The name of the parties, which are the organization () and the student (employee or job seeker). The contract specifies the name of the organization and the person acting on behalf of the employer on the basis of the relevant document, as well as the last name, first name, and patronymic of the student.
2. A specific profession, specialty, qualification acquired by the student. This information is indicated in accordance with the documents defining the conditions for training and retraining of the student in educational institutions, or in accordance with the Qualification Directory of Positions of Managers, Specialists and Other Employees (approved by Resolution of the Ministry of Labor of Russia dated August 21, 1998 N 37) or the unified tariff and qualification directory of works and professions of workers by industry, if training is carried out in the organization.
3. The obligation to provide the employee with the opportunity to study in accordance with the apprenticeship contract. This responsibility includes:

• concluding an agreement with an educational institution or a person engaged in individual labor teaching activities for the provision of educational services. It is advisable to indicate the cost of training, which will serve as evidence of the costs incurred by the employer (for example, in the event of a dispute about the amount of reimbursement by the student);
• providing the student with the opportunity to acquire theoretical knowledge and applying them in practice (for example, manufacturing parts). The contract should indicate specific prices for performing work during practical classes;
• creating conditions for proper performance of work in practical classes with the provision of funds personal protection(if necessary);
• release of an employee from work for the duration of training in a certain profession or specialty. It should be noted that in accordance with Art. 187 of the Labor Code of the Russian Federation, an employee sent by the employer to improve his qualifications outside of work is provided with the following guarantees: retention of the average job (position) at the main place of work, as well as payment of travel expenses if the employee was sent to another area for advanced training. But such guarantees are provided only at the main place of work;
• assigning a highly qualified specialist to the student - a mentor from among the organization's employees for the purpose of consulting, training and guidance when mastering a new profession, specialty or when receiving additional knowledge or skills on the employer's premises. It should be noted that with, who is assigned additional responsibilities for training the student, it is necessary to conclude an additional agreement to change the terms of the employment contract determined by the parties, if the labor function of the employee-mentor initially did not include the responsibility for training. Accordingly, if such an employee agrees to change the terms of the contract, then the additional work must be paid in accordance with Art. 151 Labor Code of the Russian Federation;
• provision of a place for training or retraining on the employer’s territory, since in accordance with Part 2 of Art. 196 of the Labor Code of the Russian Federation, training can be carried out both in educational institutions and in organizations;
• to another job after successful completion of training;
• payment of housing for a student sent to study in another locality, and making additional payments not provided for in Art. 187 Labor Code of the Russian Federation;
• releasing an employee from work during off-the-job training;
• change of employee if training is carried out on the job. In this case, the contract must reflect the specific working hours, accounting period, wages and additional payments, if they are provided for or by local regulations of the employer;
• establishing criteria for successful completion of training;
• determining the means by which the employer carries out the training process (hiring premises for conducting seminars, purchasing educational materials, inviting lecturers and teachers, additional payments to highly qualified specialists from among the organization’s employees, etc.);
• conducting final exams, tests and other types of determining the level of knowledge acquired, if training is carried out on the territory of the employer, etc.;

4. The employee’s obligation to undergo training and, in accordance with the acquired profession, specialty, qualification, work under an employment contract with the employer for the period established in the apprenticeship contract.

The contract should also reflect other responsibilities of the student, for example, participation in the educational process, practical classes, submission of documents on advanced training and professional retraining, compliance with labor protection requirements, careful handling of the employer’s property, passing mandatory medical examinations before admission to certain types of work, etc. .d.

5. Duration of apprenticeship. The duration of this period depends on the complexity of the profession, specialty or qualification for which training or retraining is carried out, as well as on the form of training (on-the-job or on-the-job).

The duration of training conducted in educational institutions depends on the purpose and type of training. If the student agreement includes a condition on the period of its validity, then it is recommended to indicate not a specific date, but an event that will mark the end of the term (completion of training).

6. Amount of payment during the apprenticeship period. In accordance with Part 1 of Art. 204 of the Labor Code of the Russian Federation, the student is paid, the amount of which is established by agreement of the parties and is indicated in the student agreement. The amount of the scholarship cannot be less than the minimum wage established by federal law.

In addition to the information listed in Part 1 of Art. 199 of the Labor Code of the Russian Federation, the student agreement may include other conditions if the parties have reached an appropriate agreement. Such conditions include, for example, the following:

• extension of the student contract;
• drawing up schedules for final tests and exams on the employer’s premises, issuing documents on completion of training;
• provision of additional guarantees when sent to study at educational institutions of higher and secondary vocational training, if the student already has an education of the appropriate level (additional leave, travel expenses, etc.).

Part 3 of Art. 201 of the Labor Code of the Russian Federation provides for the possibility of changing the content of the student agreement after its conclusion by agreement of the parties. The contract itself may indicate the reasons and conditions under which it can be changed. Failure to include such conditions in the student agreement does not deprive the parties of the right to change it.

An apprenticeship contract is concluded for the period necessary to train for a given profession, specialty, or qualification.

For duration given period The level of qualifications the student has is also affected. In other words, training a student who has a sufficient level of knowledge, but does not have practical skills, takes less time. The term of the contract also depends on the educational programs if the training is conducted at an educational institution.

According to clause 12 of the Model Regulations on continuous professional and economic training of personnel of the national economy (approved by the Decree of the State Labor Committee of the USSR, State Education of the USSR and the Secretariat of the All-Union Central Council of Trade Unions dated June 15, 1988 N 369/92-14-147/20/18-22), the training periods for training As a rule, new workers are established for up to six months, and for certain complex professions - up to twelve months.

In accordance with clause 7 of the Model Regulations on an Educational Institution, advanced training includes the following types of training:

• short-term (at least 72 hours);
• thematic and problem-based seminars (from 72 to 100 hours);
• long-term (over 100 hours).

Consequently, the duration of the apprenticeship depends on the form of training, which is determined by the employer independently in local regulations (training for a new profession or specialty, advanced training, retraining). Thus, the period of vocational training or retraining in educational institutions is determined in accordance with the plan of such institutions and the norms of the current Model Regulations on continuous vocational and economic training of personnel of the national economy (approved by Resolution of the State Committee for Labor of the USSR, State Education of the USSR and the Secretariat of the All-Union Central Council of Trade Unions of June 15, 1988 N 369/ 92-14-147/20/18-22).

Serious organizations are interested in qualified workers and strive to prevent staff turnover. Therefore, they stimulate the professional growth of employees - their training, advanced training, and change of specialization due to production needs. In such cases, there is a need to conclude a student agreement. Read about what it is and how to properly draw up a student agreement in this article.

What is a student agreement

According to Art. 198 Labor Code of the Russian Federation, a student agreement is an additional agreement to an employment contract. Now only 2 varieties are used:

• Student agreement with a person who wants to get a specialty and get a job in an organization. Such an agreement civil nature. It differs in that at the time of signing the document there is no labor relationship between the employee and the employer. The applicant will be paid for initial training in the profession, after which he will take up his position.
• With an existing employee for his professional training/retraining, either off-the-job or on-the-job. In this case, an apprenticeship agreement can be concluded both to train an employee, and to improve his qualifications and even a radical change in specialization.

Important! The conclusion of a student agreement is permitted provided that the employer is a legal entity and the employee is an individual. The Labor Code does not allow an individual entrepreneur or individual to draw up such an agreement. The training referred to in the contract is paid for by the employer at his own expense.

In what form and for what period is the student agreement concluded?

The contract for training at the expense of the employer is drawn up in writing in two copies. It is concluded for the period necessary to obtain a certain qualification (Article 200 of the Labor Code of the Russian Federation). The beginning of the validity period of the student agreement is indicated in the document. This period is extended for the duration of illness, military training and in other cases provided for by the laws of Russia (Article 201 of the Labor Code of the Russian Federation).

Basic provisions of the Labor Code of the Russian Federation regarding the student agreement

In Art. 203 of the Labor Code of the Russian Federation states that the apprenticeship period should not exceed working time standards for workers of the appropriate age, profession, and specialty. Students who are already employees of the organization are released from work under an employment contract or transferred to part-time work. During the period of apprenticeship, a person cannot be involved in overtime work or send on business trips not related to training.

According to Art. 204 of the Labor Code of the Russian Federation, during the apprenticeship period, the employer pays the student a stipend in an amount not lower than the minimum wage. The work he performs during practical classes is paid in accordance with established rates.

In accordance with Art. 205 of the Labor Code of the Russian Federation, students are subject to all norms and requirements of labor legislation, including labor protection.

According to Art. 207 of the Labor Code of the Russian Federation is not established for a person who has successfully completed training when signing an employment contract with the employer. It is also stated here that the student faces the risk of dismissal under the student agreement before the end of the training period without good reason. In this case, at the request of the employer, he will be obliged to reimburse him the entire amount of the scholarship received and other expenses associated with the apprenticeship.

In Art. 208 of the Labor Code of the Russian Federation states that the apprenticeship contract is terminated after completion of the training period or on the grounds provided for in the document.

Description of the document

When filling out a sample student agreement between an employee and an employer, please note that it contains the preamble of the agreement, the main and final parts. All sections should be filled out in detail in order to prevent the emergence of controversial and ambiguous situations in the future.

The preamble identifies the parties to the contract and determines who acts on behalf of the employer-organization. If the contract is not signed by the sole executive body, it is necessary to clarify the document on the basis of which it operates. According to the Labor Code of the Russian Federation, it is allowed to empower a representative of an organization to conclude apprenticeship agreements. This needs to be recorded locally normative act. Both a citizen of Russia and a foreigner can be a student, but in the latter case, you will need to indicate the regime of his stay in the country.

Then follows the main body of the document. First, the subject of the agreement is stated here. According to Art. 199 of the Labor Code of the Russian Federation, the following conditions are mandatory:

1. future qualifications of the student;
2. name of the organization where the training will take place;
3. the employer's obligation to provide the employee with training opportunities;
4. the employee’s obligation to complete the training program and then work for a certain period of time in the organization in accordance with the qualification assigned to him;
5. duration of study;
6. the amount of payments during the training period (not lower than the minimum wage established by law).

Then the rights and obligations of the parties are indicated. It is the employer's responsibility to pay for training on time. If the organization does not fully cover the costs of training, it is necessary to clearly state which costs are borne by the employer and which by the student. Also among the employer’s responsibilities is the payment of a stipend to the student.

Watch the video about concluding a student agreement:

The student's responsibilities can be described in more detail. He must:

• attend classes;
• conscientiously complete tasks within the framework of the curriculum;
• pass all assigned certifications;
• pick up documents about the education received and transfer them to the employer, etc.

As an employer's right, the ability to control the student's progress can be included in the document.

Then comes the section on employer reimbursement for training expenses. Here you need to determine the following points:

1. exactly what expenses the student will have to pay (usually a scholarship and tuition costs for the curriculum);
2. in what cases does the student have an obligation to reimburse the employer’s expenses;
3. under what conditions, upon dismissal of a trained employee, he will not have to reimburse the costs of his training;
4. within what period the trained employee will have to reimburse the costs of his training;
5. whether liability will arise for the employee if he does not reimburse the costs on time.

You can ask questions of interest in the comments to the article.

In what cases does an employer have the right to conclude an apprenticeship agreement with an employee? What conditions can and cannot be included in it? Is it possible to provide for a penalty for early dismissal in such an agreement? Is it possible to include in the apprenticeship contract a condition prohibiting the employee from resigning due to at will? Is it necessary to issue an order to send an employee for training? How can I recover costs associated with training from him in case of early dismissal of an employee?

Labor Code on concluding a student agreement

The right of workers to training and additional vocational education, as well as for passing an independent assessment of qualifications is enshrined in Part 1 of Art. 197 Labor Code of the Russian Federation. According to Part 2 of this article, this right is exercised by concluding an agreement between the employee and the employer.

According to the rules of Art. 198 of the Labor Code of the Russian Federation, an employer - a legal entity (organization) has the right to conclude a student agreement:

with a job seeker;

with an employee of the organization. A student contract with an employee of this organization is additional to the employment contract. At the same time, obtaining education can be either part-time or without interruption from work.

Note: During the period of validity of the apprenticeship contract, the employee cannot be involved in overtime work, sent to business trip, not related to apprenticeship (Article 203 of the Labor Code of the Russian Federation).

The student agreement is concluded in writing in two copies for the period necessary to obtain the appropriate qualification (Article 200 of the Labor Code of the Russian Federation). Unified form There is no student agreement, so the parties have the right to develop it independently. The student agreement is valid from the date specified in this agreement for the period stipulated by it. During the validity period of the student agreement, its content can be changed only by agreement of the parties (Article 201 of the Labor Code of the Russian Federation).

The terms of the student agreement that contradict the Labor Code, collective agreement, agreements are invalid and do not apply (Article 206 of the Labor Code of the Russian Federation).

In a situation where it is necessary to extend the validity of the student contract, the employer and employee (job seeker) must draw up an additional agreement, which indicates the reason for the extension and new date end of the student agreement. This document is drawn up in two copies (one for each party) and is an integral part of the student agreement.

The student agreement is terminated (Article 208 of the Labor Code of the Russian Federation):

upon completion of the training period;

on the grounds provided for in the contract. In this case, the employer must issue an order to terminate the apprenticeship contract with reference to the clause of the contract that specifies the basis for its termination.

Is it necessary to issue an order to send an employee for training?

The employer’s obligation to issue an order to send an employee to training after concluding an apprenticeship contract is not established by law. However, issuing such an order would be useful: it will be useful for recording apprenticeship time, calculating scholarships and other payments. The order should indicate the last name, first name, patronymic of the person who entered into the student agreement, the duration of the agreement, terms of payment, working hours and other conditions.

Is it possible to include a condition in the apprenticeship contract that prohibits the employee from resigning at his own request?

An employment contract may provide for an additional condition regarding the employee’s obligation to work after training, conducted at the expense of the employer, for no less than the period established by the contract (Article 57 of the Labor Code of the Russian Federation). A similar condition may be included in an additional agreement on training an employee at the expense of the employer. The Constitutional Court of the Russian Federation drew attention to this possibility in its Determination No. 1005-О-О dated July 15, 2010.

It should be remembered that such a condition should not worsen the employee’s position in comparison with what is established by labor legislation. Note that labor legislation does not contain a ban on dismissing an employee at his own request after training.

So, the employer does not have the right to refuse to dismiss the employee. However, he can recover from the employee in accordance with Art. 249 of the Labor Code of the Russian Federation, funds spent on training.

Is it possible to provide for a penalty for early dismissal of an employee in the student agreement?

Sverdlovsk Regional Court in Appeal ruling dated April 19, 2018 No. 33-6403/2018 considered the organization’s complaint against the decision of the Kamensky District Court of the Sverdlovsk Region dated December 22, 2017. The essence of the matter was as follows. In accordance with the agreement concluded between the organization and the employee, the latter was required to complete a full course of training at a driving school, after which he would work in the organization for a certain time, and if these duties were not fulfilled, he would have to reimburse the plaintiff’s training costs and pay a fine in the amount of the cost of training. The employee resigned of his own free will before the expiration of the period established by the contract, and he did not pay the fine.

The judges noted that the plaintiff’s arguments are based on the assertion that it is possible to establish in an apprenticeship agreement greater responsibility for the student (employee) than is provided for by labor legislation. At the same time, he referred to the dispositive nature of the provisions of Art. 207 and 249 of the Labor Code of the Russian Federation.

Indeed, the norm of Art. 249 of the Labor Code of the Russian Federation is set out as dispositive and provides for the employee’s obligation to reimburse the employer’s training costs in the event of the employee’s dismissal without good reason before the expiration of the contractual period.

This obligation is actually the obligation for the employee to compensate the employer for material damage. The limits of such employee liability are clearly indicated in Art. 238 of the Labor Code of the Russian Federation: this is an obligation to compensate only direct actual damage. Under straight actual damage means a real decrease in the employer’s available property or deterioration in the condition of said property (including property of third parties located by the employer, if he is responsible for the safety of this property), as well as the need for the employer to make costs or unnecessary payments for the acquisition, restoration of property or compensation damage caused by the employee to third parties.

Note: by virtue of Part 2 of Art. 9 Labor Code of the Russian Federation collective agreements, agreements, employment contracts cannot contain conditions that limit the rights or reduce the level of guarantees of workers in comparison with those established by labor legislation and other regulatory legal acts containing standards labor law. If such terms are included in, agreement or, they are not applicable.

Thus, provided for in Art. 249 of the Labor Code of the Russian Federation, the discretion of the parties to the agreement is limited by the norms of Art. 238, part 2 art. 9 of the Labor Code of the Russian Federation, the parties to this agreement cannot reduce the level of employee guarantees provided for by labor legislation, including establishing an increased financial liability, obligation to pay a fine.

As for the norm of Art. 207 of the Labor Code of the Russian Federation, which the employer referred to in the complaint, does not provide for the employee’s obligation to pay a fine. According to this article, in the event that a student, at the end of his apprenticeship, without good reason, does not fulfill his obligations under the contract, including not starting work, he, at the request of the employer, returns to him the scholarship received during the apprenticeship, and also compensates for other expenses incurred by the employer in connection with apprenticeship costs. The amount of the fine is not the plaintiff's expenses.

Is it necessary to pay sick leave for an employee who falls ill during training?

It should be noted that the legislation does not regulate the issue of payment of temporary disability benefits to an employee during the apprenticeship period.

Article 205 of the Labor Code of the Russian Federation stipulates that apprentices are subject to labor legislation, including legislation on labor protection. According to Art. 183 of the Labor Code of the Russian Federation, in case of temporary disability, the employer pays benefits to the employee in accordance with federal laws. The amount of such benefit depends on the average earnings and length of service of the employee (Article 7, 14 of the Federal Law of December 29, 2006 No. 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity” (hereinafter referred to as Federal Law No. 255-FZ ).

Temporary disability benefits are not assigned to the insured person for the period the employee is released from work with full or partial preservation wages or without payment in accordance with the legislation of the Russian Federation (Part 1, Article 9 of Federal Law No. 255-FZ). However, the period of apprenticeship is not directly named among the periods specified in this article. From this we can conclude that the benefit is subject to assignment and payment in the general manner.

At the same time, there is a position according to which it is not necessary to pay the employee benefits during training, since he is actually released from work. However, this point of view may lead to disputes with the employee and regulatory authorities. Moreover, in the event of a student’s illness, the validity of the student agreement is extended for the period of his incapacity for work (Article 201 of the Labor Code of the Russian Federation).

As for the scholarship, during the period of incapacity for work it is paid in the manner prescribed by the student agreement.

If the employee quits before the end of the period stipulated by the student agreement...

According to Art. 249 of the Labor Code of the Russian Federation, an employee is obliged to reimburse the costs incurred by the employer when sending him to training at the expense of the employer, in the event of dismissal without good reason before the expiration of the period stipulated by the employment contract or agreement on training the employee at the expense of the employer.

What reasons for dismissal before the expiration of the period of service after training can be considered valid?

The current labor legislation does not contain an exhaustive list of valid reasons for early termination of an employment contract. Therefore, the question of whether the reason given by the employee is valid is decided in each individual case, taking into account the specific circumstances. Taking into account the position of the controllers, the employer has the right to independently decide whether the reason for dismissing the employee is valid (letters of the Ministry of Labor of the Russian Federation dated October 18, 2017 No. 14-2/B-935, Rostrud dated October 18, 2013 No. 852-6-1). Good reasons for dismissal include:

lack of work, the need to transfer to another job in accordance with a medical report (clause 8, part 1, article 77 of the Labor Code of the Russian Federation);

reduction in the number of employees (staff) of the organization (clause 2, part 1, article 81 of the Labor Code of the Russian Federation);

call for military service(clause 1, part 1, article 83 of the Labor Code of the Russian Federation);

the need to care for a child under three years of age, as well as for a sick young child.

To avoid disagreements and disputes with the employee, valid reasons for dismissal should be listed in the employment contract or training agreement.

Please note: Supreme Court in the Determination dated April 17, 2017 No. 16-KG17-3, came to the conclusion that to recover from former employee training expenses can be paid not only under a student agreement, but also under additional agreement to the employment contract. The court emphasized that an apprenticeship contract is not the only type of training agreement and that training and additional professional education of employees are possible under the conditions specified in the employment contract. It is permissible to establish rules on working off after training, in case of violation of which the employee must reimburse the employer’s costs for training. Moreover, this obligation does not depend on whether the employee received a new specialty or qualification as a result of training.

However, earlier there were decisions of lower courts (see, for example, the Appeal Determination of the Stavropol regional court dated 02/07/2017 No. 33-1049/2017), in which the arbitrators recognized the employee’s obligation to reimburse the employer for training costs only if there is a student agreement.

Note: upon dismissal, the employee is not obliged to reimburse the employer for the costs of vocational training or additional vocational education, which the employer, in accordance with Part 4 of Art. 196 of the Labor Code of the Russian Federation must be carried out in cases provided for by federal laws and other regulatory legal acts of the Russian Federation, if this training or education is a condition for the employee to perform certain types activities (Appeal ruling of the Tomsk Regional Court dated 02/07/2014 No. 33-397/2014).

How to recover from an employee the costs associated with his training?

If an employee is dismissed without good reason before the expiration of the period stipulated by the employment contract or agreement on training at the expense of the employer, training costs may be recovered in accordance with general rules compensation for damage caused by the employee to the employer and making deductions from wages.

Note: The employer's costs for training, which are subject to reimbursement, include, in particular, a stipend paid during the apprenticeship, direct payment for training, training materials, etc.

So, according to the rules of Art. 248 of the Labor Code of the Russian Federation, recovery from the guilty employee of the amount of damage caused by him, not exceeding his average monthly earnings, is carried out by order of the employer. The order can be made no later than one month from the date of final determination by the employer of the amount of damage caused by the employee.

In the event of a dispute regarding the amount of amounts due to the employee upon dismissal, the employer is obliged to do so as specified in Part 1 of Art. 140 of the Labor Code of the Russian Federation, the deadline to pay the amount not disputed by him (Part 2).

The employee can reimburse the employer cash voluntarily (by depositing into the organization’s cash register or transferring to a current account).

By agreement of the parties, the employee may reimburse the employer’s expenses in installments. To do this, the employee must sign an obligation indicating specific payment terms. If the employee does not reimburse the employer, this document may be presented in court as evidence of the debt.

Note: in the Appeal ruling dated May 24, 2016 No. 33-3675/2016, the Court of the Khanty-Mansiysk Autonomous Okrug - Ugra drew attention to the norm of Art. 232 of the Labor Code of the Russian Federation, according to which the contractual responsibility of the employer to the employee cannot be lower, and the employee’s responsibility to the employer cannot be higher than provided for Labor Code or other federal laws.

Is it possible to oblige an employee to reimburse the costs of paying for educational leave granted to him?

Payment for educational leave is a guarantee for students (Article 173 of the Labor Code of the Russian Federation). The Labor Code does not provide for the return of such amounts to the employer, therefore, even if this condition is determined by the employment contract, it is not subject to application. This conclusion was reached by the Sverdlovsk Regional Court in Determination No. 33-2139/2006 dated March 28, 2006.

In the Appeal ruling dated September 4, 2013 No. 11-25893/2013, the Moscow City Court noted that an employee who studied at the expense of the employer, in the event of dismissal, is not obliged to reimburse him for the amount of travel expenses and the average salary paid for the period of training, even if the condition on compensation by the employee of the specified amounts is included in the student agreement.

If an employee was expelled for poor academic performance, can the employer recover from him the money transferred for his education?

As noted above, the employee is required to undergo training in accordance with the terms of the apprenticeship agreement (Part 1 of Article 199 of the Labor Code of the Russian Federation). By virtue of Part 2 of Art. 199 of the Labor Code of the Russian Federation, the student agreement may also indicate other conditions determined by agreement of the parties (Part 2 of Article 199 of the Labor Code of the Russian Federation). If such an agreement contained a condition that the employee must reimburse the employer for expenses in the event of his expulsion from the educational institution, the employer has the right to demand such reimbursement from him.

An employer can enter into an apprenticeship agreement with both its employee and a job seeker. When drawing up an agreement, you should remember that it cannot include conditions that worsen the employee’s position in comparison with those established by labor legislation. In particular, conditions that provide for a fine for early dismissal or a ban until the expiration of the work period specified in the contract will be invalidated. At the same time, the employer has the right to recover from the employee in the event of early dismissal the costs associated with his training (scholarship paid during the apprenticeship, tuition fees, educational materials, etc.). However, it will not be possible to recover from the employee the amounts paid as guarantees established for him by the Labor Code of the Russian Federation (expenses for payment of granted educational leaves, amounts of travel expenses, etc.). To avoid disagreements and claims from employees and regulatory authorities, the apprenticeship agreement should clearly state the procedure for reimbursing the employer’s expenses in the event of an employee’s early dismissal without valid reasons, and also indicate which reasons are valid.