What is the sbac enforcement and judicial practice on the issues of violation of rights of employees of educational organizations, their legal status in the conditions of new requirements established by the Federal Law on Education in the Russian Federation, led to the need for constitutional and legal assessment of the constitutionality of the requirements of Part 1 of Art. 46 of the Law on Education in the Russian Federation.
The Constitutional Court, when assessing the new requirements for teachers, points out that in the field of legal regulation of labor relations, the Constitution of the Russian Federation requires the state to guarantee citizens who have been in labor relations for a long time and have successfully carried out their professional activities respect for dignity and work honor when changing the legal regulation in order to ensure that their rights and legitimate interests are taken into account and to prevent changes in their legal status solely on the basis of formalities.
The assessment of conformity of the work performed (position held) by persons engaged in the same professional activity (holding the same positions) shall be carried out using the same criteria that allow taking into account the results of professional activity of employees and their attitude to work, their business qualities, and not based solely on the fact that the employee does not have the required professional education, while math games for 2nd grade the employment contract with the employee was concluded on the basis of the employer’s decision within the framework of the actions of the employer.
As part of the consideration of a specific complaint, the Constitutional Court concludes that the introduction of the Federal Law on Education in Russia did not imply that the assessment will be subject to the availability of the required professional education for teachers already in labor relations and successfully carrying out their professional activities.
This conclusion is confirmed by the agreed position of the Ministry of Education and Science of the Russian Federation and the Trade Union of Workers of National Education and Science of the Russian Federation on the inadmissibility of termination of the employment contract with a tutor or teacher who formally does not meet the requirements of Part 1 of Art. 46 of the Federal Law on Education in Russia, but was hired before the entry into force of this Federal Law.
At the same time, despite the fact that the Constitutional Court recognized Part 1 art. 46 of the Federal law on education in the Russian Federation does not correspond to the Constitution of the Russian Federation, to the extent that it – in the sense given to it by the law enforcement practice in the system of current legal regulation – is used as a justification for termination of the employment contract with teachers of pre-school educational organizations, hired before the entry into force of the Federal law on education in the Russian Federation, the question of correlation of new higher requirements for qualification of teachers (in the context of the new Constitution) is still unresolved.
At present, the educational legislation does not have transparent organizational and legal mechanisms to ensure the application in the educational system of the norms of the labor legislation, providing the right of the employee to training (professional education), as well as the obligation of the employer to ensure that the employee receives the necessary professional education, if it is a condition of ensuring the legality of the employee’s pedagogical activity.
There is also an ambiguous legal norm that restricts the indication in the annex to the license of the addresses of the places of educational activity on additional professional programs and on the basic programs of vocational training, while neither the legislation on licensing of certain types of activities or legislation on education exempt such programs from the need to license them, and the addresses – the premises used for the implementation of these programs, from the need to comply with the licensing requirement.