A resigning employee is entitled to monetary compensation for unused vacation. Moreover, compensation is paid for vacations accumulated over the entire period of work with a particular employer. To determine it, it is important to know the number of vacation days to which the employee was entitled at the time of dismissal and his average earnings.

Pavel Sutulin,
expert of the Legal Consulting Service GARANT

Upon dismissal, the employee is paid monetary compensation for all unused vacations. The amount of this compensation is determined by multiplying the number of vacation days not used by the employee at the time of dismissal by the employee’s average daily earnings. In turn, the number of days of unused vacation is the difference between the number of vacation days to which the employee became entitled at the time of dismissal and the number of vacation days used by the employee.

Determining the number of vacation days earned at the time of dismissal

The proportion in this case should look like this:

M 0: 12 = K y: K 0,

Where
Mo - the number of months worked by the employee;
12 - number of months in a year;
Ku - the number of vacation days to which the employee became entitled at the time of dismissal;
Ko - the number of days of the employee’s annual paid leave.

Thus, the number of vacation days earned by an employee is determined by the following formula:

K y =(M 0 * K 0) : 12

This formula is also used by courts when calculating the number of days of unused vacation.

Example

The duration of an employee's vacation is 28 days. The employee resigns of his own free will, having worked 8 months in the current working year. The number of vacation days due to him will be 28 days. x 8 months : 12 months = 18.67 days.

At the same time, there is a slightly different approach to the procedure for determining the number of vacation days to which the employee became entitled at the time of dismissal. This position is based on the explanations of Rostrud, according to which each month worked by an employee gives him the right to 2.33 (28 days: 12 months) days of vacation (with a vacation duration of 28 days). In turn, the final value of the number of vacation days earned by the employee is determined by multiplying this value by the number of months of vacation experience.

Thus, in essence, Rostrud proposes to split the above formula into two separate arithmetic operations:

1. divide the number of vacation days by 12;
2. multiply the resulting value by the number of months worked by the employee.

However, this approach seems to the author to be contrary to common sense and leading to deliberately distorted calculation results. The fact is that the value resulting from dividing 28 by 12 is an infinite decimal fraction 2, (3), and the number 2.33 is obtained as a result of rounding. Consequently, the use of this intermediate approximate value also negatively affects the accuracy of all subsequent calculations, and in the direction of reducing the number of days earned by the employee, that is, worsening his situation.

The application of this calculation procedure leads to the emergence of obviously absurd situations.

Example

The duration of an employee's vacation is 28 days. The employee resigns of his own free will, having worked 6 months in the current working year. It seems obvious that, having worked exactly half of the working year, the employee has the right to exactly half of his vacation, that is, 14 days. However, if you apply the calculation method of Rostrud, you get a slightly different value:

2.33 days x 6 months = 13.98 days.

At the same time, the application of the Rostrud methodology is reflected in judicial practice.
However, even if the employer considers it acceptable to use this approach to calculating the number of vacation days earned by an employee, please note that it is not possible for all employees, without exception, to determine the number of allotted vacation days based on 2.33 calendar days of vacation for each month of service. 2.33 days of vacation per month of service are due only to those employees whose annual paid vacation is 28 calendar days. If the full vacation is more than 28 days, then the number of vacation days per month of service will be more than 2.33. For example, a teacher whose vacation is 56 calendar days is due 4.67 calendar days of vacation per month of vacation experience (56 days: 12 months).

It should also be noted that current legislation does not provide for the possibility of rounding the resulting number of vacation days. The letter from the Russian Ministry of Health and Social Development noted that it is possible to round the number of days of earned leave, including to whole numbers, but not according to the rules of arithmetic, but in favor of the employee. However, this approach is valid only for those cases where rounding is the desire of the employer and is carried out, for example, in order to facilitate further calculations. If rounding is an objective necessity, then the employer is obviously forced to carry it out, regardless of the fact that the legislation does not regulate the procedure for such an action. According to the author, generally accepted arithmetic rounding principles can be used in this case.

Example

The duration of an employee's vacation is 28 days. The employee quits with 1 month of vacation experience. The number of days of vacation earned by him in this case will be the result of dividing 28 by 12, that is, 2, (3). However, the periodic fraction cannot be used by the employer in further calculations, and therefore he is forced to resort to rounding the resulting value. In this case, in accordance with established practice, rounding is done to hundredths. That is, the result will be 2.33 days. If the employer wants to round the resulting value to tenths or to a whole number, then in this case he will be forced to round up, that is, to 2.4 and to 3, respectively.

At the same time, the position of the Russian Ministry of Health and Social Development once again proves the illegality of the procedure for calculating the number of vacation days proposed by Rostrud. Since there is no need to use the value 2.33 as an intermediate value for further calculations, in this case the number 2.(3) would have to be rounded up, that is, to 2.34.

Determining the number of months of an employee’s vacation period

Separately, it is necessary to mention the peculiarities of determining the number of months of an employee’s vacation period. When calculating the periods of work that give the right to leave, surpluses amounting to less than half a month are excluded from the calculation, and surpluses over half a month are rounded up to a full month. At the same time, it is not specified what should be understood by half a month. Nevertheless, from the examples given in the Rules, we can conclude that 15 days are always taken as half a month when calculating length of service, regardless of the number of calendar days in the month in which they fall.

It should also be noted that in this paragraph we are talking about working months, not calendar months, and, accordingly, those surpluses that remain after determining the number of full working months are subject to rounding.

Example

The employee was hired on April 14 and fired on May 16, 2014. In this case, his length of service giving him the right to leave is 1 month and 3 days. Surplus amounting to less than half a month is not taken into account in further calculations. Thus, the employee’s vacation period is 1 month.

As mentioned above, paragraph 28 of the Rules establishes a number of cases when an employee has the right to full leave for a working year that has not been fully worked.

Thus, employees dismissed for any reason who have worked for the employer for at least 11 months, which are subject to credit towards the period of work giving the right to leave, receive compensation for full leave.

This legal norm is applicable as long as it is not inconsistent. After all, annual paid leave is included in the vacation period and is granted as a general rule during the working year for which it is due. In other words, 11 months of experience giving the right to vacation is always enough to make a full working year together with a full vacation.

Rostrud confirms this conclusion.

The right of employees to compensation for full vacation with at least 11 months of service is also recognized by the courts.

Since paragraph 28 of the Rules does not say that the right to full compensation is given by 11 months of vacation service only in the first working year, this provision applies to any working year in which the employee resigns. No judicial practice has been found that would refute this conclusion.

The question arises whether employees are entitled to full leave if their service is 11 months only as a result of rounding. For example, an employee worked 10 months and 18 days in the current working year. Based on paragraph 35 of the Rules, the excess of 18 days is rounded up to a full month, the vacation period is equal to 11 months. However, the author believes that the employee actually worked for less than 11 months and does not have the right to full leave on the basis of paragraph 28 of the Rules. He is entitled to compensation for 11/12 of his full vacation.
Obviously, full compensation is due to the employee who has not yet taken vacation for the corresponding working year. Consequently, 11 months of service giving the right to full leave should not include the time spent on the actual leave in question.

Example

The employee has the right to annual paid leave of 28 calendar days. The employee’s next working year began on 04/01/2013. From 08.11.2013 to 21.11.2013 (14 calendar days) he used part of the paid leave for this working year. The date of dismissal is March 14, 2014. There were no periods not included in the vacation period.
Vacation experience without time spent on vacation is exactly 11 months. Therefore, the employee acquired the right to full vacation. Since 14 days of them have already been used, compensation must be paid for the remaining 14 calendar days.

Employees who have worked from 5.5 to 11 months also receive full compensation for unused vacation if they are dismissed due to the liquidation of an enterprise or institution or its individual parts, reduction of staff or work, enlistment in military service, etc.
Judicial practice on the application of this rule is ambiguous.
Often, courts, when considering cases where the grounds for dismissal were the reasons listed in paragraph three of clause 28 of the Rules, recognized the right to full compensation for employees who worked from 5.5 to 11 months.
However, there are judicial acts with the opposite point of view: the rule of paragraph three of paragraph 28 of the Rules on full compensation should not be applied, since it contradicts, which enshrines the principle of proportional calculation of compensation for unused vacation.

Among those who consider paragraph three of paragraph 28 of the Rules to be valid, there is also no unity on all issues related to its application. Thus, Rostrud specialists indicate that the procedure for paying full and proportional compensation for work experience of up to 11 months applies only to employees who have worked in the organization for less than a year; compensation for the second working year is paid in proportion to the time worked. Some courts adhere to a similar position.

However, the author does not agree with the opinion of officials and judges and believes that the rules on full compensation should apply to all employees dismissed on the grounds specified in paragraph three of paragraph 28 of the Rules, regardless of how long they have been working for a given employer, if in the current their work experience is more than 5.5 months in the working year. The arguments in favor of this point of view are as follows. Clause 28 of the Rules exhaustively lists cases of payment of not only full, but also proportional compensation. The Rules do not contain provisions according to which employees who have worked for more than a year are always paid proportional compensation for unused vacation. They generally do not have separate legal regulation of the payment of compensation for unused vacation to employees who have been working for the employer for several years. Therefore, the choice between full and proportional compensation should not depend on the working year in which the employee quits. A different interpretation violates the principle of equality of rights and opportunities for workers, since with the same length of service in the current working year, it allows compensation for a different number of vacation days for this year. Similar conclusions can be found in judicial practice.

Taking into account the above, the number of vacation days to which an employee will be entitled upon dismissal if the duration of his vacation is 28 calendar days, depending on the length of leave and the basis for dismissal, is equal to the following values ​​(see table below). Also on this issue, see the materials in the information block “Encyclopedia of Solutions. Labor relations, personnel”, presented in the GARANT system.

The number of vacation days to which an employee is entitled upon dismissal, depending on the vacation period (with a vacation duration of 28 calendar days).

Every officially employed employee has the right to an annual salary. The employer is responsible for compliance with this rule: if employees are not provided with vacation on time, the labor inspectorate may impose serious penalties.

In addition to the main paid leave, in some cases the employee has the right to additional days, which must also be paid. An accountant must know how to calculate the number of vacation days in accordance with the law, as well as how to pay if an employee quits without working a full year.

28 days - standard vacation

According to the Labor Code of the Russian Federation, the period of annual leave should be 28 calendar days; the employer can increase this number.

Any changes must be included in the collective agreement or in an additional agreement with employees, in addition, they must be reflected in the internal regulations of the enterprise.

The organization must develop a vacation schedule, and the procedure for their provision and payment must be clear to every employee. This will allow you to avoid mistakes and unnecessary claims, as well as prevent resentment towards management, which can negatively affect work results.

Workers in some areas are granted increased leave: this is due to both more and the specifics of a particular industry. Extended leave is provided in the following areas:

1. Elementary school teaching staff rest for 42 days, and other teachers - 56 days. This is due to both the long summer holidays and the busy work schedule during the school year.
2. Employees working in difficult climatic conditions (in the Far North), as well as those involved in mining and geological exploration.
3. More vacation days are provided to medical workers and military personnel.
4. who serve in remote regions, the vacation period does not include the days it takes to travel to home and back.
5. Customs officers, employees of the Department of Internal Affairs and the Federal Drug Control Service, astronauts, air traffic controllers and other persons whose work involves increased danger and responsibility can also count on increased leave.

In each of the listed industries, the number of vacation days is calculated according to its own regulatory documents; the accountant becomes familiar with the specifics of the work after employment. Additional leave in any industry should also be provided if employees work overtime, or the company constantly operates an irregular work schedule. In this case, the increase must be at least three days; additional vacation may be increased by agreement between management and the team.

If an employee has not gone on vacation for a long time, the duration will be calculated based on the months worked. Let's look at an example of this calculation:

• The employee was accepted into the organization on March 20, 2014, but he did not go on his first vacation exactly a year later, but only on October 20, 2015. On April 2-12, he went on paid sick leave.
• The organization provides employees with vacation, the maximum duration of which is 32 days.
• We calculate the pay period: the employee worked for a total of one year and another 8 months next year. Thus, the total working time was 20 months.
• Paid sick leave time is also included in this period.
• To calculate the required number of vacation days, you need to divide 32 days by 12 months and multiply by the total amount of months worked: 32/12 * 20 = 53.

Thus, the employee must be on vacation for 53 days, excluding holidays that fall during this period. For the same number of days, the amount of vacation pay is calculated in the manner prescribed by law.

The procedure for calculating the amount of vacation pay

Calculation of the number of vacation days

There is a general formula by which the amount of compensation for vacation is calculated: Vacation pay = Average daily earnings x Days of vacation. If the billing period corresponds to a calendar year, then the average number of days in a month will be 29.4. If the year was not fully worked, then the total number of all days worked is calculated.

• Basic salary amount. If an employee receives a salary not on a time-based basis, but on a piece-rate basis, and at the time of calculating vacation data for the last month there is no information, you can take information for the same month of last year.
• Allowances and additional allowances that an employee received for overtime work or for an increased number of job responsibilities. All these payments must be formalized.
• Payments and bonuses for hard work and saving resources. Payment of the bonus is carried out after the order of management. This amount is also taken into account when calculating average daily earnings.
• Additional payment for length of service, travel allowances and other payments that the employee received during the year.

Important! All these amounts are taken into account without taxes paid on them and contributions to the Pension Fund; based on the results obtained, the full daily earnings are calculated.

As a result, based on the total amount received, the average daily earnings are calculated, and it must be multiplied by the amount of vacation. The result will be the amount of compensation for paid leave that the employee must receive in hand on the first day.

Calculation of compensation for leave upon dismissal

Compensation is due for unused vacation

If an employee quits without using the required paid leave, the company must pay him compensation for all vacation days. If before this the employee has not gone on vacation for several years, all these compensations must be summed up.

If a full calendar year has been worked, the enterprise pays compensation for 28 vacation days, taking into account the average daily earnings for the period worked. If less than a year has passed since hiring or the last vacation, then payments are calculated based on time worked.

In this case, days worked that are less than half a month will not be taken into account, and if there are more, the number of months will be rounded up. All compensation for unused vacation must be paid on the day of dismissal. The company makes a full payment to the employee and issues it.

If an employee has already received vacation pay for the whole year, but has not completed the allotted time, the company has the right to withhold the balance from his salary upon final payment. Paid leave is one of the important benefits of official employment, and the employer is obliged to strictly comply with legal requirements.

If his rights are violated, the employee may, after which the company will have to not only pay the required compensation, but also pay legal costs. In order to avoid unnecessary proceedings, it is necessary to carefully calculate the number of days and the amount of vacation pay required by law.

To refresh your knowledge in this area, watch the recording of the traditional spring webinar on calculating vacation pay:

There is always a final calculation, in the foreground of which is the calculation of compensation for unrealized vacation. It is paid taking into account vacation days for the entire period of work. In this publication, we will talk about how to calculate the number of vacation days upon dismissal, doing it quickly and competently.

Since compensation payments are calculated by multiplying the number of days of unused vacation by average daily earnings, the reliability of the amount received depends on the correct calculation of these indicators.

How to calculate vacation days upon dismissal

The law does not establish a specific algorithm for calculating vacation days to be paid upon termination of an employment contract. Usually, when making such calculations, they adhere to the positions set out in the “Rules on regular/additional vacations” dated April 30, 1930 and their duration established by the Labor Code of the Russian Federation.

When an employee is dismissed, whose work experience in one place exceeded 11 months, and vacation was not granted, compensation for the year is calculated. The same amount of compensation is provided to employees who worked from 5.5 to 11 months, if the dismissal took place due to the liquidation of the enterprise as a whole, its divisions, or a significant reorganization of the company.

For example, an employee who worked for the company from March 26, 2016 to February 28, 2017, i.e. 11 months, quits. and 2 days. Vacation duration is 28 days. Since more than 11 months were worked, the entitlement to leave was the number of days provided for by law - 28.

If the period of activity does not exceed 11 months, vacation days are calculated in proportion to the number of months of vacation experience in a part-time working year using the formula:

H to = N / 12 x K ohm - H dio, where

– H to – number of vacation days that must be paid;

– N – legally established standard of vacation days due per year;

– K om – number of months of work;

– H dio – number of days of vacation already taken.

The employee got a job on June 1, 2015, worked until February 29, 2016, taking part of his vacation in December (10 days), the total duration of which was 28 days. Let's calculate the number of unrealized vacation days using the proposed formula:

• H to = 28 / 12 x 9 – 10 = 10.97 days.

If, keeping the same initial data, a minor employee is dismissed, then the calculation will include a vacation duration of 30 days:

• H to = 30 / 12 x 9 – 10 = 12.5 days.

For a teacher entitled to a 56-day vacation, the calculation will be as follows:

• H to = 56 / 12 x 9 – 10 = 31.99 days.

Thus, the duration of the entitlement vacation plays a key role in the calculation.

About rounding the amount of calculated vacation days

The mandatory rounding of the obtained value is not regulated by law, but the letter of the Ministry of Health and Social Development of the Russian Federation dated December 7, 2005 No. 4334-17 notes that it is possible to round the number of vacation days at the initiative of the employer, incl. up to whole units. But this can be done without applying arithmetic rules, but based on the interests of the staff.

Example

The established duration of vacation is 28 days. Situation: an employee who has 1 month is resigning. worked experience. The number of days of entitlement leave per month is 2.3333 days (28/12). Due to the inconvenience of using periodic fractions in calculations, the employer has the right to round the resulting value. In this case, rounding:

• to hundredths, determine the value of 2.34 days;
• up to tenths – 2.4 days;
• up to whole – 3 days.

How to calculate the number of months of vacation: features

To correctly calculate vacation days upon dismissal , You should remember the specificity of establishing the number of months in the vacation period. When calculating a period in this way, generally accepted arithmetic rules are followed: if the number of days remaining after determining full months does not exceed half a month, they are excluded from the calculation, and if exceeded, they are rounded to the whole month. Please note that the Rules do not clarify the term “half a month”. However, based on the examples presented in the document, employers in practice take 15 days for half a month, regardless of their number in the month. In addition, the calculation of the period involves billing periods, not calendar ones.

Example

An employee hired on 01/03/2016 leaves on 05/19/2016. The work period was 4 months. and 16 days. 16 days (› 15) are rounded to the nearest whole month, resulting in 5 months for further calculation.

We explained how to calculate the number of vacation days upon dismissal. We would like to add that employees who have worked for at least 11 months. and those dismissed for any reason receive compensation in full for the year, which does not contradict the Labor Code of the Russian Federation, since annual paid leave is necessarily included in the vacation period, amounting to a total working year.

Article 114 of the Labor Code of the Russian Federation guarantees every employee the right to rest. One of the types of rest is during which the employee retains his average earnings and his workplace. How to calculate how many vacation days an employee is entitled to for the period worked, for each month of work - calculation procedure and examples.

How many days of vacation are due for each month worked?

The minimum vacation norm established by law is 28 calendar days. An employee who has worked in the organization for at least 6 months has the opportunity to take annual paid leave; each month worked adds 2.33 days to the vacation period. This figure was announced in an explanatory letter from Rostrud of the Russian Federation dated October 31, 2008. This figure is obtained by dividing the annual duration of basic paid leave by 12 months.

It is important to remember that there are special categories of citizens for whom an increased number of days of rest is provided. These include minors, teachers, and workers from the regions of the Far North. So, for example, each month of “northern vacation” worked adds 4.33 days to the vacation.

To determine how many days of vacation an employee is entitled to while working, you need to calculate his vacation record - that is, the time of work for which vacation is entitled according to the Labor Code of the Russian Federation.

What periods do not need to be taken into account when calculating the number of vacation days

When calculating the number of vacation days, the following are not taken into account:

• Time of absence from work without a valid reason (absenteeism).
• The time for which the employee was suspended from work due to his violation of sanitary, hygienic and disciplinary standards, and labor safety regulations. For example, if an employee, through his own fault, did not renew his medical record or did not undergo training giving him the right to access to work with electrical and heating appliances. Exclusion of this period from the calculation of vacation time is possible if the employer has documents proving the employee’s guilt.
• The length of time the employee is on maternity leave. However, here we will make a reservation that in the case when an employee works part-time, having taken parental leave, then the calculation of his leave period is standard. Changing the type of working time does not impose any restrictions on the right to receive leave.
• Vacation periods “at your own expense”, that is, without saving earnings, received in excess of the 14 calendar days per year established by law. This rule also applies to employees who have worked in the organization for less than a year. It is also important to note that if an employee is dismissed, these periods must be included in the vacation period.

How to calculate how many vacation days an employee is entitled to

The calculation of vacation time is carried out not by calendar years, but by working years; the calculation begins on the date of conclusion of the employment contract and is individual for each employee.

Example 1.

The date of registration of the employment contract with the employee is 01/10/2016. His working year expires on 01/09/2017. Let's calculate the number of vacation days as of 09/01/2016. The time worked is 7 months and 21 days. If the calculation is carried out at the time of dismissal, then 21 days are taken as a full month, that is, the employee has worked for a full 8 months.

The calculation of the number of vacation days earned will look like this: 2.33 x8 = 18.64 days.

In the case of such a calculation when dismissing an employee, the employer will be responsible for rounding the number of months to 8 in accordance with the “Rules on regular and additional vacations.” In a situation where termination of the employment contract is not planned, rounding will entail the provision of leave in advance.

Example 2.

The start date of the employment relationship is 05/20/2016. Let's determine the number of vacation days as of December 1, 2017. During this period, the employee was twice granted leave for 14 calendar days. The employee's first vacation year ended on May 19, 2017. As of the given date, the employee’s vacation period was 42 days. However, during 2017, the employee was on leave without pay for 30 calendar days. 16 days must be excluded from the billing period. This reduces the number of working months to 17, and the insurance period to 40 days. Taking into account the 28 days of vacation already granted, we get 12.6, i.e. the number of days of main vacation as of December 1, 2017.

What to do if vacation is provided in advance

Article 122 of the Labor Code of the Russian Federation defines the categories of workers to whom leave is granted, even if the required leave period has not yet been completed. This right is granted to minors, adoptive parents whose child is not older than 3 months, and women before their maternity leave. The employer's approval is not required.

In other cases, by providing leave for periods not yet worked, the organization bears financial risks. It is possible to recover the amount of vacation pay paid in advance if an employee resigns only at the rate of no more than 20% of the amount of wages upon calculation. The remaining amount of vacation pay can be returned only with the consent of the employee.

If the employment contract is terminated, the vacation period is calculated until the date of dismissal.

When providing vacations to employees, many employers make a dangerous mistake. In cases where this is necessary before the end of the first 6 months of work, they agree on a 7-day vacation, violating the law. If an employee agrees to divide annual paid leave into several parts, the first should not last less than 14 days.