Do additional holidays carry over to the next year? Is it possible to postpone an employee's vacation due to production needs without his consent? Unused vacation upon dismissal

The employee has been working in the company since March 1, 2015. Until February 28, 2016, he was not on vacation. In the period from March 1, 2016 to the present, he rested only 14 days. In October, he has 14 more calendar days according to the schedule, but he wants to reschedule his vacation for 2017. Question: If the Employer does not mind, he can reschedule his vacation or he must take it off without fail or can be rescheduled, but on the condition that he takes these 14 days off until March 1, 2017, in order to by the end of his 2 years of work there was a total of 28 calendar vacation days used. Thank you!

Answer

Answer to the question:

According to Part 1 of Art. 122 of the Labor Code of the Russian Federation, paid leave must be provided to the employee annually. In this case, the employee must use the vacation during the working year for which he is granted. Those. for the working year from 03/01/2015 to 02/28/2016, the employee had to use leave until 02/28/2016.

By virtue of h. 3 Article. 124 of the Labor Code of the Russian Federation in exceptional cases, when the provision of leave to an employee in the current working year may adversely affect the normal course of work of the organization, individual entrepreneur, it is allowed, with the consent of the employee, to transfer the vacation to the next working year. At the same time, leave must be used no later than 12 months after the end of the working year for which it is granted.

Those. in exceptional cases and with the consent of the employee, leave for the working year from 03/01/2015 to 02/28/2016 can be transferred to the next working year and must be used during this working year, i.e. from 03/01/2016 to 02/28/2017. Thus, the unused part of the vacation in the amount of 14 calendar days for the working period from 03/01/2015 to 02/28/2016 must be used until 02/28/2017.

At the same time, leave for the working period from 03/01/2016 to 02/28/2017 must also be used until 02/28/2017.

The systematic transfer of annual leave to the next working year can be regarded as a violation of labor legislation, because. Part 3 Art. 124 of the Labor Code of the Russian Federation speaks of exceptional cases of transferring vacation to the next working year.

Details in the materials of the System Personnel:

1. Answer:When should an employee be granted annual paid leave?

Vacation entitlement

When does an employee become entitled to leave?

The employer is obliged to provide leave before the end of the 6-month period at the request of the employee only in exceptional cases in relation to certain categories of employees:

employees under the age of 18 (, Labor Code of the Russian Federation);
women before and after maternity leave, as well as at the end of parental leave (, Labor Code of the Russian Federation);
employees who have adopted children under the age of three months ();
husbands while their wives are on maternity leave ();
one of the parents, including a foster parent, guardian or caregiver who is raising a disabled child under the age of 18 ();
veterans ();
Chernobyl ();
military wives ();

Vacation for the second and subsequent ones can be granted to an employee at any time in accordance with (), and for - taking into account their wishes, regardless of the schedule.

Vacation after six months of work

Question from practice: is the employer obliged to provide leave to the employee after six months of work

Yes, it is required if the employee submits a relevant application.

Employees admitted to the organization after the approval of the vacation schedule go on vacation not according to the vacation schedule, but. In the general case, after six months of work, the employee has the right to leave, and the employer has the obligation to provide it if the employee applies with a corresponding application.

At the same time, the law does not say that leave should be granted on demand and solely at the discretion of the employee, without coordinating the time of leave with the employer. Therefore, when granting such leave, the parties must take into account mutual interests and opportunities and agree on the start date of the leave. In general, an employee is not entitled to independently determine the date of going on vacation and arbitrarily go on vacation. Exceptions are those who have the right to use leave without taking into account the opinion of the employer. In the case of unauthorized use of vacation, the employer may.

Such conclusions follow from the totality of the provisions of the articles and Labor Code RF. Similar explanations are given in. This is also indicated by the courts, see, for example, appeal rulings, rulings of the Sverdlovsk Regional Court,.

Leave in advance against next year

Question from practice: is it possible to provide leave in advance for the next working year

You can, only if the employer himself does not mind. The employer is under no obligation to provide such leave.

The employer is obliged to provide employees with vacation annually: for each (). Granting leave before the beginning of the working year for which it is granted, labor law not provided. The courts also point to this, see, for example,.

This rule applies even to those employees who have the right to leave at any convenient time, for example, for employees before or after. They do have the right to demand a vacation, but it only works in relation to unused vacations for the current and earlier years.

Tip: it is not recommended to provide full leave on account of the next working year.

First reason. If an employee decides to quit without having worked off the used vacation, the employer will not always have the opportunity.

The second reason. The employer is generally obliged to provide leave annually (). By providing full leave in advance, the employer himself finds himself in a situation where he formally cannot fulfill the requirement of the legislation on annual provision, so that the employee really has the opportunity to rest during the year, or he will have to provide leave in advance again.

Question from practice: is the employer obliged to provide the employee with leave immediately before the start of the maternity leave, if the employee has already fully used the leave for the current working year

No, not required.

At the request of the employee, immediately after the maternity leave or before it, the employer is obliged to provide annual paid leave (). At the same time, the employee uses the vacation for the current (). Labor legislation does not provide for the provision of leave before the start of the working year for which it is granted. The courts also point to this, see, for example,.

Thus, if the employee has already fully used the leave for the current working year, then the employer is not obliged to provide the next leave in advance immediately before the start of the maternity leave.

Question from practice: is the employer obliged to provide the employee with annual leave immediately before the start of parental leave or after it, if the employee has already fully used the leave for the current working year, and the right to leave for the new working year has not yet come

No, not required.

At the request of the employee, immediately before or after parental leave, the employer is obliged to provide annual paid leave (). At the same time, the employee uses the vacation for the current (). Labor legislation does not provide for the provision of leave before the start of the working year for which it is granted. The courts also point to this, see, for example,.

Thus, if the employee has already fully used the vacation for the current working year, then the employer is not obliged to provide the next vacation in advance immediately before the start of the parental leave or after it.

Question from practice: can an employee demand an unscheduled annual leave if she returned to work after parental leave and worked for several days

Yes maybe.

An employee's annual leave, at her request, is granted only immediately after (i.e., the day after the end) of maternity leave. There is no "immediately after" clause for parental leave. According to the general rules, annual leave for an employee who was on parental leave is granted outside the schedule at the end of such leave, that is, both immediately after and some time later: before the date of the employee's leave specified in. If the employee has not used the right to extraordinary leave before the specified date, then in the future she uses the leave in general order i.e. on schedule.

Thus, an employee, if she returned to work after parental leave and worked for several days, has the right to demand annual leave outside the schedule.

This conclusion follows from the provisions of the articles, the Labor Code of the Russian Federation.

Attention: employer annual leave after parental leave, if the employee has already used up all rest days for the current and previous working years.

A question from practice: is an employee entitled to annual leave outside the schedule after the end of parental leave. The employee is not the mother of the child

By general rule does not have.

Annual leave outside the schedule at the end of parental leave is granted to the woman - the mother of the child upon her application (). In addition to the mother, the right to use annual leave after parental leave is granted to fathers raising children without a mother, as well as guardians (custodians) of minors (). In all other cases, the caregiver is not entitled to unscheduled annual leave after the end of parental leave.

Attention: employer annual leave after parental leave, if the employee has already used up all vacation days for the current and previous working years.

Question from practice: can an employer refuse to provide a pregnant employee with unused annual leave before going on maternity leave

No, it cannot, provided that she really has unused vacation days for the current and previous working years.

At the request of a pregnant employee, the employer is obliged to provide her with annual paid leave before or immediately after maternity leave (). There are no exceptions to this rule in the legislation.

At the same time, the Labor Code of the Russian Federation does not establish what kind of annual leave an employee can apply for: main or additional, for the current calendar year or for the previous one. Based on the above, we can conclude that if a pregnant employee has several unused vacations, she has the right to claim each of them, including several vacations at the same time. Replacement of annual basic holidays with monetary compensation is not allowed. This conclusion follows from Article 123, Article 126 and the Labor Code of the Russian Federation.

But the obligation to provide leave on account of future periods from the employer.

A question from practice: is the employer, at the request of the husband, obliged to provide him with annual paid leave during the period of maternity leave granted to the wife. The couple adopted a baby

Yes, I must.

One of the spouses who have adopted a child is granted leave lasting from the date of adoption until the expiration of 70 days (110 days in the case of adoption of two or more children) from the date of birth of the adopted child (part , article 257 of the Labor Code of the Russian Federation). At the same time, the employee has the right to choose, at her discretion, either the provision of the specified leave, or the provision of maternity leave (). When an employee who has adopted a child chooses maternity leave, her spouse has the right to require her employer to provide him with annual paid leave for the period the spouse is on maternity leave (). The employer has no right to refuse this requirement.

It should be remembered that if the employee’s spouse, when adopting a baby, did not take maternity leave, but the leave granted to the adoptive parent in accordance with Article 257 of the Labor Code of the Russian Federation, the employee does not have the right to demand annual leave during such leave.

A question from practice: is it possible for a reinstated employee to be granted leave in full. Upon dismissal, he was paid compensation for unused vacation

Yes, you can.

Since reinstatement means returning the employee to their previous legal status, which existed before the dismissal, his right to leave is also restored.

The Labor Code of the Russian Federation does not provide for the provision of incomplete (partial) annual leave. The provision of part of the leave (sharing the leave) is possible only at the request of the employee.

Thus, if the reinstated employee wishes to use the vacation in full, provide this vacation with offset payments made as compensation for the unused part of the vacation, making a recalculation of the payment for the unused part of the vacation.

Such a conclusion follows from the totality of the provisions of articles, article 127, of the Labor Code of the Russian Federation. Rostrud v. holds a similar position.

Working year and length of service for the appointment of the main leave

The employee is granted leave for each year of work (). At the same time, each employee has his own individual working year for which he is granted vacation. This year is reflected in in the column "For the period".

The working year, as a rule, does not coincide with the calendar year. Because the beginning of the first working year is counted from the moment the employee is hired. For example, if an employee got a job on December 1, 2014, then his first working year in general is the period from December 1, 2014 to November 30, 2015. Second working year - from December 1, 2015 to November 30, 2016, etc.

In some cases, the employee's working years must be calculated in. Such a need arises if the employee has periods that are not included in the length of service that gives the right to leave.

So, the length of service giving the right to the main leave does not include:

the time the employee is absent from work without good reason, including in the cases provided for;
parental leave until the child reaches three years of age. Except when ;
time provided at the request of an employee, exceeding a total of 14 calendar days in a working year.

The rest of the time is included in the length of service giving the right to the main vacation. Including this:

time of actual work, including on conditions;
the time when the employee did not actually work, but in accordance with the law, the place of work was retained for him (illness, annual paid leave, holidays, physical examination, etc.);
forced absence time illegal dismissal or suspension from work and subsequent reinstatement in the previous job;
the time of suspension from work of an employee who did not pass a medical examination through no fault of his own;
time provided at the request of the employee, not exceeding 14 calendar days in a working year;
other periods of time provided for by the local act of the organization, labor or collective agreements.

In such a situation, the employee's graduation date is shifted by the number of calendar days that are required for the appointment of annual paid leave. This follows from the provisions of the Labor Code of the Russian Federation. Similar explanations are given in.

Advice:

An example of determining the working year if an employee had a long unpaid leave

Accountant V.N. Zaitseva joined the organization on January 11, 2011. Accordingly, her first year of employment ran from 11 January 2011 to 10 January 2012 inclusive. The employee used the vacation for this year in full.

From February 1 to February 22, 2012 (22 calendar days), the employee, on the basis of her application, was granted leave without pay.

Of the 22 calendar days of leave at their own expense, only 14 days in the working year are included in the length of service, giving the right to annual paid leave. The remaining 8 calendar days (22 days - 14 days) are excluded from the length of service giving the right to leave.

In October 2012, the employee was granted basic annual paid leave. At the same time, her working year, which the HR specialist reflected in the vacation order, was the period from January 11, 2012 to January 18, 2013. That is, the end of the working year did not fall on January 10, 2013, but shifted by 8 calendar days, which were not included in the length of service giving the right to leave.

An example of determining the working year if the employee was on parental leave

Cashier A.V. Dezhneva was hired on December 20, 2011. That is, initially its working year is equal to the period from December 20, 2011 to December 19, 2012. However, before the end of this period, the employee went on parental leave, which lasted 2 years 9 months and 21 days.

To calculate the new working period, Dezhneva needs to add the duration of parental leave to the original end date of the working year:

Thus, the extended working year of an employee is equal to the period from December 20, 2011 to October 10, 2015. This means that her next working year will generally be from October 11, 2015 to October 10, 2016, if there are no other days in this period that are not included in the length of service that gives the right to leave.

Question from practice: is the period of maternity leave included in the length of service giving the right to annual basic leave

Yes, it's included.

The list of periods that are taken into account when determining the length of service giving the right to the next vacation is contained in Article 121 of the Labor Code of the Russian Federation. In particular, it states that the time when the employee did not actually work, but in accordance with the law, the place of work was retained for him is subject to accounting. falls under this condition, since it refers to a period of temporary incapacity for work, in which the employee retains his place of work (). The legitimacy of this position is confirmed, as well as Article 5 of the Convention of the International Labor Organization of June 24, 1970 No. 132.

In addition, maternity leave, unlike parental leave, is not included in the list of periods that should be excluded when calculating vacation experience ().

Thus, the period the employee is on maternity leave is included in the length of service giving the right to annual basic leave.

Advice: quickly and without errors to calculate the working years and vacation balances will help the unique calculator of the Personnel System from the "Services" section. It is enough to enter the date of admission, the number of days of rest, information about excluded periods - and the calculation is ready.

Practical question: is the period of part-time work during parental leave included in the length of service giving the right to annual basic leave

Yes, it's included.

As a general rule, the time of leave to care for a child until he reaches the age of three is not included in the length of service giving the right to grant annual leave (). At the same time, the length of service giving the right to leave includes the time of the employee's actual work (). Current legislature directly allows for the possibility of an employee working on a part-time basis during parental leave (, Labor Code of the Russian Federation). At the same time, part-time work does not entail any restrictions for employees on the duration of the annual basic paid leave, calculation seniority and other labor rights ().

Thus, part-time work during parental leave is included in the length of service that gives the right to annual basic paid leave.

Question from practice: is the period of downtime due to the fault of the employee included in the length of service giving the right to annual basic leave

Yes, it's included.

Thus, downtime due to the fault of the employee is included in the length of service, which gives the right to provide annual basic paid leave.

A question from practice: is the period of an employee's detention included in the length of service giving the right to annual basic leave. Employee was released, case dismissed

The legislation does not provide a clear answer to this question.

One side, closed list periods of time that are not taken into account when determining the length of service giving the right to the next vacation, is presented in Article 121 of the Labor Code of the Russian Federation. In particular, when calculating the vacation period, the time of absence of an employee from work without good reasons, including in connection with suspension from work at the request of government agencies or officials(, Labor Code of the Russian Federation). On the indicated grounds, the employer may suspend the employee from work if the court decides to apply a measure of criminal procedural coercion to him in the form of temporary suspension from office ().

Therefore, if the organization removes the employee in custody in accordance with Part 1 of Article 76 of the Labor Code of the Russian Federation, then, starting from the moment of such suspension, the time spent in custody will not be included in the vacation period.

On the other hand, the list of periods that are taken into account when determining the length of service giving the right to the next vacation is given in Article 121 of the Labor Code of the Russian Federation. In particular, the time when the employee did not actually work, but in accordance with the law, the place of work was kept for him (). In this case, the time spent in custody falls under this condition. Since the Labor Code of the Russian Federation does not contain such a basis for dismissal as detention, and therefore, for the period of detention, the employee retains his place of work and accumulates vacation experience.

Therefore, an employee in custody, only after the entry into force of a court verdict, according to which he will be sentenced to a punishment that precludes further continuation of work ().

Thus, if a staff member who has been taken into custody is released without a conviction, then the time spent in custody should be included in the leave. At the same time, it is important that the employee be released on a rehabilitating basis, for example, due to the lack of corpus delicti. Only in this case, the reason for his absence from work can be considered valid and include the corresponding period in the length of service giving the right to leave.

The legality of such a position is also confirmed by the courts (see, for example,).

However, a staff member may be released on non-rehabilitative grounds, such as due to the expiration of a detention limit. In this case, his absence from work cannot be considered due to valid reasons, and therefore, the period of detention cannot be taken into account in the vacation period.

Taking into account the absence of direct legislative regulation on the issue under consideration, employers should independently determine in which cases to attribute the time of detention of an employee to the length of service giving the right to annual leave. The organization can establish the relevant rules for calculating vacation experience in a collective or labor agreement or in a separate local act, for example, in (, Labor Code of the Russian Federation).

Question from practice: is the period of leave for participation in the election campaign included in the length of service giving the right to annual basic leave

Yes, it is included, but only a part of it, not exceeding 14 calendar days.

Certain categories of persons participating in election campaigns are provided for the duration of elections or a referendum. These persons, in particular, include members of election commissions, candidates for deputies and their proxies in elections to bodies local government, proxies in elections to bodies state power etc. (see, for example, the Temporary Regulations established by Art. , Law of June 12, 2002 No. 67-FZ).

At the same time, the Labor Code of the Russian Federation does not distinguish between unpaid leave granted for family or other valid reasons, and targeted leave without pay, provided, for example, for participation in an election campaign.

Thus, if an employee participating in the election campaign was granted leave without pay, then the time of such leave is not subject to inclusion in the length of service giving the right to annual basic paid leave.

This conclusion follows from the totality of the provisions of the articles, the Labor Code of the Russian Federation.

Accumulated seniority, giving the right to leave, when transferring an employee from one organization to another (). The former employer upon dismissal in the order of transfer (). Accordingly, from the date of transfer to new organization the worker starts counting down. In the general case, the employee will have the right to leave ().

After the reorganization of the staff . Therefore, it is not required to renew employment contracts with them (). Thus, the seniority that gives employees the right to annual paid leave is not interrupted. After all, it must be calculated based on the duration of the employee’s work in the organization with which he concluded labor contract ().

The specified procedure applies to all forms of reorganization: , ().

Question from practice: is the time of a long vacation included teacher in the length of service, giving the right to annual paid leave

Yes, it's included.

Teaching staff educational organization can go on a long vacation of up to one year once every 10 years (). The procedure and conditions for granting, as well as the possibility of paying for such leave, must be determined by the charter or local act of the educational organization. For the period of being on a long vacation, the teacher retains the place of work and the study load.

Question from practice: is the length of service that gives the right to additional leave for harmful conditions work, annual leave, parental leave and periods of illness

In the length of service, which gives the right to additional leave for work with harmful and hazardous conditions labor, include only the time actually worked under the appropriate conditions (Article 121 of the Labor Code of the Russian Federation, Article 121 of the Labor Code of the Russian Federation. The courts take a similar position (see, for example, the decision of the Supreme Court of the Russian Federation of April 15, 2004 No. GKPI04-481).

Question from practice: what periods are included in the length of service for providing additional leave for irregular working hours

The issue of length of service for granting leave for irregular working hours is not regulated by law. There are two opposing views on this issue.

Supporters of one of them believe that the length of service for granting leave for an irregular working day should be determined in the same way as for annual leaves, since an exception to this rule is made only for additional leaves for work in harmful (dangerous) working conditions (). At the same time, the length of service for other holidays should be calculated in the same manner as for the main holidays, and it is logical to take into account the excluded time when irregular schedule. Since during these periods the employer, for reasons beyond his control, does not have the opportunity to involve the employee in irregular work, therefore, there is no need to provide leave for irregular work for such periods.

Proponents of the opposite point of view believe that, according to the Labor Code of the Russian Federation, all periods without exception should be included in the length of service for leave for an irregular working day. With this approach, the right to leave is granted regardless of whether the employee worked irregularly or not, leave is given for the very fact of the opportunity to attract an employee irregularly.

It should be noted that budget organizations has the right to establish the procedure for granting additional leave for irregular working hours independently in their local acts, taking into account the requirements of regulations adopted by higher authorities ().

Thus, in view of the above and in the absence of official clarifications and judicial practice on this issue in order to avoid disputes and litigation commercial organization it is recommended to fix a specific procedure for calculating the length of service for granting leave for an irregular working day in a local act.

Failure to grant leave

Can an organization not provide annual leave to employees

It is forbidden not to provide annual paid leave:

for two consecutive years;
employees under the age of 18;
employees engaged in work with harmful (dangerous) working conditions.

Such requirements are provided for in Article 124 of the Labor Code of the Russian Federation.

If necessary, the employee's annual leave ().

Responsibility for not granting leave

What is the responsibility for not providing leave to employees

For failure to provide vacations, administrative liability may be applied:

a fine in the amount of 30,000 to 50,000 rubles. - for the organization;
a fine in the amount of 1000 to 5000 rubles. - for officials of the organization (for example, the head).

And for the commission of a repeated violation, the following administrative penalties may be applied:

for an organization - a fine in the amount of 50,000 to 70,000 rubles;

Labor inspectors can learn about the offense when or from a complaint by an employee.

Unused vacation

What to do if an employee has accumulated unused vacation for several years

Vacation Convention

How to apply the rules of Convention No. 132 when granting leave to employees

In addition to the requirements of the Labor Code of the Russian Federation, the procedure for granting annual paid leave to employees is given in the international one (adopted in Geneva on June 24, 1970), which Russia also joined (, the Instrument of Ratification of the Russian Federation was registered with the International Labor Office on September 6, 2010). Since the norms of the Labor Code of the Russian Federation do not contradict the provisions, its ratification did not entail any changes in the rules for granting annual paid holidays to employees.

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Employees with unused vacations should find out if unused vacations for previous years are burned out, and also what is the procedure for compensation for missed legal vacations. Employers - what threatens not to provide leave, even with the consent of citizens who have not rested.

Is it possible to transfer the vacation to the next year?

According to Art. 122 of the Labor Code of the Russian Federation, annual paid leave of at least 28 calendar days is mandatory.

Workers in Russia not only have the right to take vacations while receiving vacation pay, they must do so. If employees do not have to be afraid of an administrative penalty for refusing annual leave, then the employer is threatened with a charge of infringing on the labor rights of citizens.

The problem arises when some of the staff do not take vacations for several years, hoping to receive monetary compensation for unused vacations.

If the employee did not use the vacation only once last year, then he has the right to postpone the vacation to the current year.

Note: article 124 of the Labor Code obliges to take off the missed annual paid leave no later than 12 months following the end of the fully worked calendar year.

Important nuances:

you must first use non-vacation leave for last year, only then - for the current one;
employees of the personnel department or other persons scheduling vacations for the next year should take into account unused periods of paid vacation in the current year;
in the application for leave, the employee is not required to emphasize that we are talking about unused period. The text indicating the duration of the rest, which is no different from the vacation statement for the current year, is legally correct.

Should be ordered. If the initiator is an employee, his application is required. Both documents must contain a good reason, provided for in Art. 124 TK.

Even if there are such reasons, the manager is not entitled to leave the subordinate without paid rest for more than 2 years in a row.

Does unused vacation expire?

To figure out whether unused vacation burns out or not in 2020 is prompted by the ratification by Russia of the convention of the International Labor Organization, which provides for the preservation of the right of an employee to annual paid vacation for only 21 months.

Additionally

Upon dismissal, the employee is entitled to all previously unused vacations. You can exercise this right by providing the employee with monetary compensation for the entire accumulated period. If there are few unused days, then the employer can send the employee on vacation, and only after that - dismiss him.

This ratification did not lead to the adoption of amendments to the Labor Code of the Russian Federation and other regulations that do not provide for any burning of non-vacation holidays.

According to the letter of Rostrud dated June 8, 2007 No. 1921-6, employees who have not taken vacation for several years are still entitled to use all accumulated vacation days.

According to the norms of the Labor Code, the employer is obliged to provide each employee with an annual vacation of at least 14 calendar days. The remaining days - both for the current year and the previous ones - are split up arbitrarily (Article 125 of the Labor Code). Find out how you can divide vacation according to the labor code. This allows the employee to periodically take 1-2-day "day off" without leaving workplace for a long period, and the employer - to eliminate the violation of labor legislation in terms of paid holidays.

Does unused vacation expire? - the answer is in the video

What threaten several years without holidays

The above-mentioned ILO convention does not allow the replacement of guaranteed paid rest with compensatory cash payments.

The subordinate has the right to demand from the employer to compensate for unused vacation for previous years with money only upon dismissal (how compensation for unused vacation is considered, read in the article). By law, until the employment relationship is terminated, this amount cannot be received.

Note: persons who continue to work, monetary compensation is due exclusively for non-vacation, added to 28 calendar days or another period of the main one.

If, upon dismissal, the employer decides to compensate the employee for unused vacation only for the last 21 months on the basis of the same international convention, the citizen will apply to State Inspectorate labor. As a result:

the audit will reveal that the person was not provided with paid leave for several years in violation of the law, which will entail administrative penalty in the amount of up to 50 thousand rubles;
GIT will oblige to pay compensation for non-vacation leave in full.

If you challenge the decision of the GIT in court, it is not a fact that he will take the side of the employer - judges often make decisions in favor of employees.

To avoid problems with the law and / or large payments to those leaving, it is recommended to send employees on legal vacation in a timely manner in accordance with the Labor Code and the vacation schedule.

Ask your question and get free legal advice

Question

The company has a vacation schedule. Is it possible to take applications from employees with a request to transfer unused vacation days to the next calendar year?

Provide the employee with at least part of the vacation. Taking advantage of the opportunity provided for by the Labor Code of the Russian Federation, to divide the holidays into parts.

Or, in order to avoid possible disputes with regulatory authorities, one should also be guided by Part 3 of Art. 124 of the Labor Code of the Russian Federation (transfer of vacation to the next year due to recall from vacation).

Rationale

The organization must provide its employees annual paid holidays (Article 114 of the Labor Code of the Russian Federation). Moreover, regardless of the type of activity, the size of the organization, the number of employees and other factors. Under normal working conditions, annual leave should be granted for 28 calendar days (Article 115 of the Labor Code of the Russian Federation ) annually.

According to Art. 123 of the Labor Code of the Russian Federation, the order of granting paid holidays determined annually in accordance with the vacation schedule approved by the employer, taking into account the opinion of the elected body of the primary trade union organization not later than two weeks before the start of the calendar year in the manner prescribed by Art. 372 of the Labor Code of the Russian Federation for the adoption of local regulations.

According to Art. 125 of the Labor Code of the Russian Federation, by agreement between the employee and the employer, annual paid leave can be divided into parts. At the same time, at least one of the parts of this vacation must be at least 14 calendar days.

Recall of an employee from vacation is allowed only with his consent. The unused part of the vacation in connection with this must be provided at the choice of the employee at a time convenient for him during the current working year or added to the vacation for the next working year.

In accordance with Art. 124 of the Labor Code of the Russian Federation, annual paid leave must be extended or postponed for another period determined by the employer, taking into account the wishes of the employee, in the following cases:

Temporary disability of the employee;

Performance by the employee during the annual paid leave of state duties, if the labor legislation provides for exemption from work for this;

In other cases provided for by laws, local regulations of the organization.

If the employee was not timely paid for the annual paid leave or the employee was warned about the start time of this leave later than two weeks before it began, the employer, upon the written application of the employee, is obliged to postpone the annual paid leave for another period agreed with the employee.

The Labor Code allows postpone vacation worker next year employer on his own initiative only in exceptional cases - if the provision of leave to the employee in the current year will adversely affect the work of the organization. Such postponed leave must be used no later than 12 months after the end of the working year for which it is granted (Article 124 of the Labor Code of the Russian Federation). At the same time, it is expressly prohibited not to provide annual paid leave for two consecutive years, as well as the failure to provide annual paid leave to employees under the age of eighteen and employees engaged in work with harmful and (or) dangerous working conditions.

At the same time, the legislation does not exclude the possibility of transferring leave at the request of the employee, and does not establish a direct ban on the possibility of transferring the annual basic paid one to the next working year at the initiative of the employee. However, the Labor Code of the Russian Federation does not contain terms for which it is possible to postpone annual leave at the initiative of the employee. Despite the fact that by postponing the annual main paid leave to the next working year at the initiative of the employee, the employer actually meets the employee halfway, we believe that the employer in order to avoid possible disputes with regulatory authorities, one should also be guided by Part 3 of Art. 124 of the Labor Code of the Russian Federation.

In addition, it is necessary to take into account the established in Part 4 of Art. 124 of the Labor Code of the Russian Federation, a ban on the failure to provide annual paid leave for two consecutive years, as well as the failure to provide annual paid leave to employees under the age of eighteen and employees employed in jobs with harmful and (or) dangerous working conditions.

In accordance with the norms of the law, each enterprise creates a vacation sequence schedule, on the basis of which workers use their well-deserved rest throughout the year.

However, considering that initially it is impossible to plan the same family problems or production processes, both the employer and the employee are given the right to reschedule for another time that will be convenient for both the employee and the company.

Legislative regulation of the issue

Work at each enterprise implies the use of a certain system, which is formed taking into account the specifics of labor and other processes. economic activity. That is why the company's employees, who are actually the main resource and driving force, use the main vacation not at any convenient time for them, but in accordance with the priority schedule, which is drawn up in such a way that manufacturing process did not stop.

So, in particular, in accordance with Article 123 of the Labor Code of the Russian Federation By December 15, this schedule for the next year must be published, drawn up taking into account the economic activities of the institution and the opinion of the trade union, which monitors compliance legal rights workers. Then the agreed document is approved by the head of the company and the chairman of the trade union committee, and is accepted for execution on the condition that the fixed periods of rest for all employees must be observed by both parties, that is, both employees and the employer.

At the same time, taking into account that when creating a schedule it is impossible to foresee all unforeseen circumstances that may arise over the next 12 months and lead to the need to transfer legal rest to another period, the law provides for the possibility of making changes that, accordingly, will give both parties the right to use the exemption period from labor activity at other times.

So in particular, okay Article 124 of the Labor Code of the Russian Federation annual and vacation can be postponed both at the request of the employee himself, and at the initiative of the enterprise, but with the only condition, namely, the use of the agreed period of rest until the end of the current year or no later than the end of the next, given that, within the framework of the law, not granting vacation during more than two years is prohibited.

Types of periods of exemption from the labor process

According to the norms of the law, every worker has the right to both work and rest, expressed not only in days off, but also in annual holidays, minimum length which, in accordance with Article 115 of the Labor Code of the Russian Federation, is 28 days in calendar terms. At the same time, if an employee performs his duties in conditions that deviate from the norm, which is relevant in the presence or work in the northern regions, he is also entitled to additional time exemption from work, the length of which is determined in accordance with the norms of the law.

So in particular, in addition to annual leave by law the following types extra rest for:

At the same time, the main vacation is provided to each employee for a fully worked year, but the additional one is only proportional to the hours worked under certain conditions, minus periods of disability and the same annual holidays.

The specified types of rest in accordance with Article 114 of the Labor Code of the Russian Federation are generally considered to be annual paid periods of release from work in order to rest from everyday workload and to restore physical condition in the event that we are talking about the harmful effects of certain production factors. At the same time, in accordance with Article 124 of the Labor Code of the Russian Federation, any of them can be rescheduled for another period, both at the request of the worker himself, and at the will of the management, if the worker's rest at the previously scheduled time will lead to a disruption in the production process.

By the way, in accordance with the same article 124 of the Labor Code of the Russian Federation, annual leave should be moved regardless of the wishes of the parties in the following cases:

during the period of use of lawful rest, for a number of days equal to illness;
execution of state or public duties, let's say the liquidation of the consequences of the disaster or .

Also, in accordance with the norms enshrined in the Labor Code of the Russian Federation, an employee can count on the following types of vacations, which can already be called social, in particular, we are talking about and . The agreed types of exemption from direct duties, in fact, are targeted, provided for childbirth and caring for a baby or for scheduled exams. And since neither the date of birth of the child, nor the passing of the session can be postponed to another date, given that the physiological needs of the body, as well as the plan educational institution cannot be changed at the request of the worker, maternity leave and student leave are not transferable.

Reasons for changing rest periods

As a rule, annual leave is granted on the basis of a priority schedule, which, in accordance with Article 123 of the Labor Code of the Russian Federation, is mandatory for both parties.

At the same time, the law takes into account that it is impossible to foresee all the circumstances a year ahead. Therefore, the possibility of transferring a well-deserved rest to another period is allowed, but again only by agreement of the parties, which are the employee of the company and its head.

It should be noted that the vacation schedule, in fact, is a local act, the norms of which the parties are obliged to comply with, therefore, any changes to the agreed document must not only be documented, but also have good reason for such actions.

At the request of the employee

So, in particular, at the request of the worker, it is possible to transfer in the following cases:

The agreed list of grounds for postponing the vacation period is, of course, far from complete, given that there can be many urgent cases or problems that suddenly arise, which is why the right to judge how valid the reason for postponing vacation time is by law is given to employer, which actually will decide how justified the transfer is.

Employer initiative

Considering that both sides labor relations, in fact, are equal partners, the employer has the same right to transfer the previously planned rest as the employee himself. At the same time, according to the law supervisor not only must announce his decision, but also confirm the validity of the postponement of the holiday.

It should also be noted that the law as a basis to change the vacation period, only one wording is provided, implying an unfavorable reflection on the course production activities, therefore, the director has the right to decide for himself how and how much the absence of a worker at the enterprise will affect this moment and how justified the transfer.

That is, in fact, the company's management can use any wording from the submission of quarterly reports to the completion of the project, not to mention the replacement of a temporarily absent employee due to illness or a scheduled inspection by regulatory authorities. There is one more aspect that should be noted, which is enshrined at the legislative level, namely the consent of the employee, which, despite the operational need, may not agree with the decision of the management, especially if the vacation is provided according to the schedule and tickets have already been bought for the same sea or abroad.

Reasons for rejection

As a rule, both parties of legal relations in most cases any production issues, including the postponement of annual leave, are decided in the working order and on a contractual basis, because the director may need to hand over an urgent project at the end of the work shift, and the employee may have an unplanned day off, which, in principle, leads to a joint understanding.

However, in a number of cases, it is not possible to reach a consensus, given that any compromises are accepted subject to a single condition, the implementation of the normal course of labor activity.

That is, in fact, an employee can be refused a transfer of vacation only if his absence from the company adversely affects the overall course of the production process.

Registration procedure

Given that the priority schedule is a local act, any changes to the agreed document imply a certain registration procedure.

Employee initiative

So, in particular, if the employee is the initiator of making changes, for starters, it is drawn up, which is submitted for consideration to management. Then, when a positive decision is made, expressed in the imposition of a resolution, an order is already issued to amend the schedule and, accordingly, provide legal rest at another time.

If the reason for changing the rest period is sudden onset illness, a sick leave certificate is also attached to the application, on the basis of which the transfer order is issued.

By the way, in accordance with Article 123 of the Labor Code of the Russian Federation, the employee must be notified about the start time of the vacation 14 days before its occurrence. If the worker within the agreed time not received notification, such actions are regarded as violations of the rights of the worker and lead to the emergence of the employee's right to transfer the vacation at his request to a time convenient for him in accordance with Article 124 of the Labor Code of the Russian Federation, again with the filing of an application and the issuance of an order to change the period of use of legal rest.

Employer's wish

In the event that the head of the company is the initiator of the transfer of the term of use, the analogue of the application from the employee is already report from the same department head who brings to the attention of the management about the presence of urgent cases or an unfinished project, as well as the need to transfer the rest in relation to a certain employee in order to avoid disrupting the normal course of production activities.

On the basis of the submitted report, an order is issued, with which the worker must not only be familiarized without fail, but also express consent by affixing a signature or writing the phrase: I do not agree with the postponement of the vacation. By the way, the order itself should contain not only a request for changes to the schedule, but also a new date for the use of legal rest.

Considering that it is quite difficult to predict the need for rest only in a certain period, and even a year in advance, the company's management in most cases decides on the postponement of the main vacation in a positive way. After all, everyone understands that with a loyal approach to employees, as well as their problems, the ability to work, as well as the desire to fulfill immediate duties, increase significantly.

For information on the rules for issuing annual leave, as well as their transfer, see the following video:

Is it possible to provide local normative act organizations in accordance with the first part of Art. 124 of the Labor Code of the Russian Federation, the postponement of the employee's leave for another period in connection with production necessity without his consent?

After considering the issue, we came to the following conclusion:

The employer does not have the right to fix in the local regulatory act the rule that, due to production necessity, the employee's leave without his consent can be postponed to another period.

Rationale for the conclusion:

According to the first part of Art. 123 of the Labor Code of the Russian Federation, the order in which paid holidays are granted is determined annually in accordance with the vacation schedule approved by the employer, taking into account the opinion of the elected body of the primary trade union organization no later than 2 weeks before the start of the calendar year. Part two of the same norm stipulates that it is mandatory for both the employer and the employee.

As follows from the provisions of Art. 123 of the Labor Code of the Russian Federation, an employee who, according to the law, cannot himself determine the period for using the vacation, must go on vacation exactly at the time set by the schedule. The employer is not entitled to unilaterally, without the consent of the employee, change the already scheduled date for granting leave (decision of the Moscow City Court dated 01/20/2016 N 33-1792 / 16, decision of the Vologda Regional Court dated 08/21/2013 N 33-3794 / 2013).

In accordance with the first part of Art. 124 of the Labor Code of the Russian Federation, annual paid leave must be extended or postponed for another period determined by the employer, taking into account the wishes of the employee, in the following cases:

temporary disability of an employee;

performance by the employee during the annual paid leave of state duties, if for this purpose the labor legislation provides for exemption from work;

in other cases provided for by labor legislation, local regulations.

As follows from the first part of Art. 124 of the Labor Code of the Russian Federation, the employer is obliged to extend or postpone the annual paid leave in the cases listed in this rule. In addition to those named in the first part of Art. 124 of the Labor Code of the Russian Federation of cases, cases when the employer is obliged to extend or postpone the employee's vacation, can also be established by the local regulatory act of the organization. Thus, the employer in the local act of the organization may provide for other cases in which the vacation must be extended or rescheduled.

At the same time, when establishing such cases, the employer must take into account that annual paid leave is provided to employees in order to ensure their right to rest (Article 2 of the Labor Code of the Russian Federation).

As the Constitutional Court of the Russian Federation explained in its ruling of October 23, 2014 N 2302-O "Article 123 of the Labor Code Russian Federation, determining the sequence of granting paid holidays and the time of their use, is aimed at ensuring the implementation of the constitutional right to rest. The rules on the mandatory vacation schedule and notification of the employee about the start time of the vacation, established by the second and third parts of the named article, act as guarantees for the implementation of this constitutional right. Part two of Article 124 of the said Code provides for an additional guarantee of the realization of the employee's right to annual paid leave - the employee's right to postpone the vacation in the event that the employer fails to fulfill the obligation to notify the employee of the start time of the vacation against signature. "Despite the fact that this explanation is given with reference to part the second article 124 of the Labor Code of the Russian Federation, in essence it is applicable to the cases provided for in the first part of this article.

Considering what has been said, in our opinion, the first part of Art. 124 of the Labor Code of the Russian Federation also provides for an additional guarantee of the implementation of the employee’s right to annual paid leave - the employee’s right to postpone the vacation if he cannot, for good reasons, use the vacation within the time period specified in the schedule (see also, for example, the appeal ruling of the Krasnoyarsk Investigative Committee on civil cases Regional Court dated December 14, 2015 in case No. 33-13706/2015).

At the same time, the third part of Art. 124 of the Labor Code of the Russian Federation expressly provides that in exceptional cases, when the provision of leave to an employee in the current working year may adversely affect the normal course of work of an organization, an individual entrepreneur, it is allowed, with the consent of the employee, to transfer the leave to the next working year. At the same time, leave must be used no later than 12 months after the end of the working year for which it is granted.

We believe that, within the meaning of the above norms in the local act of the organization, as cases in which the vacation must be extended or postponed, the employer can only provide for cases when it is the employee who has the right to postpone the vacation due to the fact that he cannot, due to valid reasons to use the vacation within the period specified in the schedule (for example, if it coincides with the period during which the employee, on the basis of a certificate of call, has the right to use study leave; passing a medical examination during the vacation period (in the absence of signs of temporary disability), etc. .).

Judicial practice indirectly confirms this conclusion. Thus, the courts point out that, according to Art. 124 of the Labor Code of the Russian Federation, the next paid vacation can be postponed either at the request of the employee, or with his consent; the postponement of leave by the employer on its own initiative without agreeing this issue with the employee is not provided for by the current labor legislation (see, for example, the appeal ruling of the Investigative Committee for civil cases of the Novgorod Regional Court dated 04/17/2013, the appeal ruling of the IC for civil cases of the Khabarovsk Regional Court dated 10/19/2012 to case N 33-6499).

The transfer of leave at the initiative of the employer due to production needs must be carried out in the manner prescribed by part three of Art. 124 of the Labor Code of the Russian Federation, and, accordingly, is possible only with the consent of the employee.

As follows from the question, the employer in the situation under consideration, in fact, intends to consolidate in the local act his right not to provide the employee with paid leave within the time period established by the schedule if there is a production need, which obviously does not correspond to the meaning of Art. 124 of the Labor Code of the Russian Federation and worsens the position of the employee. And, as established by the fourth part of Art. 8 of the Labor Code of the Russian Federation, the norms of local regulations that worsen the position of employees in comparison with the established labor legislation are not subject to application.