Legal Aspects of Staff Evaluation

Staff performance evaluation (evaluation) is one of the most important aspects of human resource management and is directed towards identifying staff members' qualifications and determining whether they correspond to their job descriptions.

Staff performance evaluation is regulated by Russian labour legislation, because its results may have legal consequences for staff members whose qualifications are being assessed.

There are certain groups of employees subject to mandatory performance evaluation in accordance with the legislation of the Russian Federation. These include, for example:

• Employees that operate dangerous production equipment (Resolution ¹2 îf the State Technical Supervisor Board of 11 January 1999 'On Approving the Regulation on Procedure for Staff Training and Performance Evaluation for Companies Operating Dangerous Equipment under the Supervision of the Slate Technical Supervisory 'Board of Russia');
• Executives and specialists of transport companies (Order ¹13/11 of the Ministry of Transportation and the Ministry of Labor of the Russian Federation of 11 March 1994 'On Approving the Regulation on the Performance Evaluation Procedure for Executives and Specialists of Transport Companies');
• Employees and specialists of scientific research institutes, engineering and technical scientific organizations (Regulation on the Performance Evaluation Procedure for Executive, Scientific, Engineering Staff and Specialists of Scientific Research institutes, Engineering, Technical, Design, Research and other Scientific Organizations, Approved by Resolutions NN 38, 20 and 50 of the State Science Committee, State Construction Committee and State Labor Committee of the USSR of 17 February 1986);
• Federal employees (Regulation on Conducting Performance Evaluations of Federal Employees, Approved by Decree of the President of the Russian Federation ¹353 of 9 March 1996);
• Heads of federal staleowned enterprises (Resolution ¹234 of the Government of the Russian Federation of 16 March 2000 'On the Procedure for Concluding Contracts and Conducting Performance Evaluations of Heads of Federal Slate-Owned Enterprises).

Companies engaged in industries which have no approved performance evaluation procedure should abide by Regulation on the Procedure for Conducting Performance Evaluations of Management, Engineering Staff and Other Specialists of Industrial, Construction, Agricultural, Transport and Communications Companies, Approved by Resolution ¹470/267 of the State Science Committee and State Labor Committee of the USSR of 5 October 1973 (amended on 22 October 1979).

The following procedure, established by Resolution ¹470/267 mentioned above: and other regulations, should be followed when conducting staff performance evaluations.

When preparing for a staff performance evaluation, the following must be approved by Order of the company's General Director: a 'List of Positions' subject to performance evaluation, a regulation on performance evaluation, a schedule and deadlines for individual staff assessments indicating date, time, location and duration of the evaluation, as well as an evaluation committee. If the company has a trade union, a union representative must be on the evaluation committee.

Staff members who will undergo performance evaluation must be informed of the schedule and deadline at least one month prior to the assessment.

Employees who have held their positions for less than one year, recent graduates involved in mandatory postgraduate internships as well as pregnant women and mothers with children under the age of three are not subject to annual performance evaluation. Employees returning to work after childcare leave are not subject to performance evaluation until they have spent one full year at work. The immediate supervisor of the employee undergoing assessment is responsible for preparing a report on the employee's performance, qualifications and business skills. The employee should be given the opportunity to familiarize him/herself with the report prior to the performance evaluation (at least 2 weeks).

The meeting of the evaluation committee must have a quorum (2/3 of the members). The committee hears statements provided by the employee him/herself, his/her department head and other individuals called to the meeting. On the basis of the information made available, the evaluation committee takes a vote by a show of hands and a majority decision is thus taken on whether or not the employ-ee's performance adequately meets his job requirements If the vote is tied, it is decided that the employee meets his/her job requirements.

The employee is notified of his/her performance evaluation results immediately fol-lowing the vote. They are recorded in an evaluation form which is signed by the chairman and members of the evaluation committee in attendance. The evaluation form and report are kept in the employee's personal file.

If the evaluation results are positive, the employee may be given a salary increase, promoted to a higher position, etc.

Measures taken on the basis of negative evaluation results most often include salary reduction or freezing, demotion and dis-missal (in accordance with item 2 of article 33 of the Labor Code of the Russian Federation).

Salary freezing must be justified by the wage policy adopted by the company collective agreements, tariff agreements, etc.

Salary reduction and demotion are consid-ered changes to significant working condi-tions and, thus, require the consent of the employee.

If the performance evaluation results indicate that the employee is unsuitable for his/her position due to insufficient qualifications, the employee can be dismissed pursuant to item 2 of article 33 of the Labor Code of the Russian Federation 'Employee's Inability to Meet Job/Position Requirements due to Insufficient Qualifications'. A dismissal must be effected within 2 months of the performance evaluation.

An important aspect regarding dismissals on these grounds is that the employee is not considered to be personally at fault for failing to fulfil his/her job require-ments. Therefore, the employee dismissed in accordance with item 2 of article 33 of the Labor Code of the Russian Federation is entitled to the following additional guarantees:

• The employer is obliged to offer the employee another position which meets his/her job qualifications;
• The consent of the trade union with regard to the employee's dismissal must be obtained, should the employee be a union member. If the employee does not agree with the dismissal, the labor dispute should be resolved in court.

As indicated in Resolution ¹2 of the Plenary Meeting of the Supreme Court of the Russian Federation of 22 December 1992 'On Certain Aspects of the Application of the Legislation of the Russian Federation in Resolving Labor Disputes', the conclusion of the evaluation committee regarding the employee's business skills are not to be con-sidered to be decisive proof of the employ-ee's inability to meet his/her job require-ments and should be considered along with other supporting evidence.

Each party should present evidence to justify its position. In practice, when resolving labor disputes in court, the employer is placed at a disadvantage as compared to the employee. If the employ-er fails to prove the validity of the dis-missal, the employee must be reinstated in his/her positio.

The employer must possess specific evi-dence demonstrating that the employee is incapable of meeting his/her job require-ments, for example, acts of rejected/faulty goods, statements regarding under-quota production, memos, employee explana-tions, expert opinions, etc.

In accordance with the Labor Code of the Russian Federation, the employer is not entitled to require the employee to carry out job duties that are not specified in his/her labor agreement. Therefore, in order to assess whether or not the employee meets his/her job requirements, all duties and responsibilities must be established in a labor agreement con-cluded with the employee (his/her job description).

The conclusion of the evaluation commit-tee may be disregarded if the evaluation procedure established at the company leads to a deterioration in the employee's working conditions as compared to those stipulated by Regulation ¹ 470/267 mentioned above.

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