Does an Unlawful Refusal to Hire Constitute a Cause for Enforced Employment? When Courts do not Compel Employing the Candidate? Ruling of The 8th Cassational Court of General Jurisdiction dd. 25.07.2023 N 8Г-13460/2023[88-14536/2023]

On April 4, 2024 Marina Abramova, AGP’s Employment Law Practice leader, spoke at the annual conference Employment Law and Labor Disputes – 2024 organized by Pravo.ru and discussed with the guests attending  the conference legal aspects of a refusal to hire. She pointed at the inadmissibility of any form of discrimination in the selection of candidates, inadmissibility of refusal to hire a woman for reasons associated with her pregnancy or parental status, an individual with disabilities having  employment service’s referral for work under the quota system for a cause unrelated to his/her professional aptitude, as well as employees invited in writing to be transferred from another employer, within one month from the date of termination of their employment at the previous place of work. A refusal to hire because of the lack of employee’s registration at the place of his/her residence or stay, or at the location of the employer is also unlawful. In all the above referenced cases the court may obligate the employer to enter in an employment contract.

However, the employer may establish additional requirements applicable to candidates and connected with their possession of special skills and experience, long track record of work in a specific profession, required for taking of a particular position. Such requirements do not constitute a violation of the RF Labor Code. Making of an employment contract with a particular person seeking an employment is the right but not the obligation of the employer and the latter is not obligated to fill its vacancies immediately or within a specific time interval.

In her report Marina analyzed legal reasoning outlined in the Ruling of The 8th Cassational Court of General Jurisdiction dd. July 25, 2023 N 8Г-13460/2023[88-14536/2023] and the grounds for the dismissal by the court of claims for making of an employment contract in the circumstances where candidate’s business proficiency and qualifications were not actually assessed.