Answer: There are situations when an employee, due to a difficult financial situation, needs to work tirelessly, without vacation. The Labor Code of the Russian Federation does not prohibit (and, therefore, allows) the following. Can negotiate with the employer and transfer (with the consent of the employee) the vacation to the next working year, citing this as a production need.

At the same time, it must be borne in mind that the law prohibits not granting vacation for 2 consecutive years.

That is, not in this - so next year you still have to take at least part of the prescribed employment contract vacation days.

However, some do this: before the second annual paid leave, the employee quits on own will, having received monetary compensation for all unused vacation days. And then, a day or two later, he gets the same job. It is clear that such schemes occur by the "conspiracy" of the employee and the employer. If this option suits both you and the employer, then it can be used, from the point of view of the law, you are not violating anything.

In general, with regard to vacation, the right of the employee (any private firm or state organization) to rest is enshrined in the Constitution of the Russian Federation, which guarantees (sic!) The right of an employee to paid annual leave, and the Labor Code of the Russian Federation also obliges the employer to keep the place of work and average earnings. It follows that the employer is obliged to provide the employee with paid leave every year and, if you want, “force” the latter to go on vacation, in accordance with the schedule.

In practice, this is done in the following way. At the end of each calendar year, the employer collects applications from all employees with wishes (and only!) About the time for granting vacation, in accordance with which a vacation schedule for the next year is drawn up. I emphasize in particular that the employer only takes into account the wishes of the employee, but may, in the interests of, for example, production, leave them (wishes) without satisfaction and actually “force” the employee to go on vacation in accordance with the vacation schedule.

Be sure to take into account only wishes about the time of granting leave to underage workers, pregnant women, beneficiaries of Chernobyl and some others.

The specified schedule is subject to agreement with the trade union, if one exists in the organization, and is approved by the head of the organization no later than December 16 of the current year. Further, all employees should be familiar with the schedule. The employee is familiarized with the vacation schedule, for example, by means of a notification (2 weeks before the start of the vacation), on which the employee signs, or by means of an order issued in advance (2 weeks before the start of the vacation), on which the employee also puts his signature. If the employee was not familiarized with the vacation schedule no later than 2 weeks before the start of the vacation, and if he was not paid vacation pay less than three days before going on vacation, then at the written request of the employee, the employer is obliged to postpone the vacation for another period in agreement with worker.

Vacation can be postponed for another period (taking into account the wishes of the employee) and in the event of, for example, temporary disability of the employee.

In case of non-compliance specified conditions the employer cannot force the employee to go on vacation at the time specified in the vacation schedule.

It is possible to make changes to the vacation schedule, but only with the mutual consent of the employee and the employer. If an agreement is not reached, then the employee must go on vacation. An employee's refusal to go on vacation may be regarded as a disciplinary offense, which entails disciplinary liability in accordance with labor legislation.

From all of the above, it follows that in relation to your vacation, various options are possible, you need to negotiate with the employer.

Do you have questions about the topic? Ask in the comments. Send new questions to the address marked “Question to the lawyer”.

Right to rest at least 28 calendar days have all, without exception, permanent employees. And if one of such a number of days is not even enough, then others do not go on vacation for years. But this is not only inconvenient for the employer and, in particular, for personnel officers and accountants, but is also fraught with administrative responsibility. About how many years an employee may not go on vacation and what the employer should do if some employees do not use their annual vacation, we will talk in the article.

Reason for leave

At the same time, the vacation schedule is mandatory for both the employer and the employee.

Scheduling vacations is a rather responsible matter, especially if the organization has a large staff of employees. In such cases, first, as a rule, graphs are drawn up in structural divisions, and then a summary graph is generated. The drafting of the vacation schedule of the unit can be entrusted to the heads of these units. Based on the schedules presented by them, the personnel department draws up a consolidated vacation schedule. Moreover, the duty of the heads of departments to draw up a draft schedule is best fixed in the corresponding order.

If such powers are not granted to managers, they can simply collect their wishes from employees, on the basis of which and taking into account the requirements of labor legislation personnel worker already draw up a unified vacation schedule.

When drawing up a vacation schedule, one should take into account the right of certain categories of employees to leave at any time and the length of service to provide such a vacation. Do not forget to include in the schedule and unused vacations from previous years.

After drawing up the schedule is signed by the head personnel service and approved by the head of the organization or an authorized person (signed). If the enterprise has a trade union, then the schedule must be agreed with it. Despite the absence of an obligation to familiarize employees with the approved schedule against signature, this must be done.

Transferring vacation to next year

Granting an employee a vacation in the current working year may adversely affect the normal course of the organization's work;

The employee agreed to carry over the vacation to the next working year.

The employee himself can also apply with a request to postpone the vacation for another period, including the next year. If the employer does not object, an order for such a transfer should be issued and changes should be made to the vacation schedule.

Leave postponed at the initiative of the employer must be used no later than 12 months after the end of the working year for which it was granted.

From the provisions Art. 125 of the Labor Code of the Russian Federation, regardless of how many vacation days the employee uses during the year, it can be concluded that one of the vacation parts must be at least 2 weeks continuously, and the rest of the vacation time for both years can be divided into parts as agreed between the employee and the employer.

Unused days of annual paid leave for previous periods, the employer must take into account when drawing up each new vacation schedule.

How many years can holidays not be used?

That is, if by general rule employees may not use annual leave for at least 2 years, then employees under the age of 18 and employed in work with harmful and (or) dangerous working conditions must use leave every year.

Failure to provide annual paid leave for more than 2 years in a row, as well as failure to provide the unused part of annual leave when it is transferred within 12 months after the end of the working year for which it is granted, is a violation of labor legislation and in case of verification labor inspectorate the organization may be fined in accordance with Part 1 Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.

According to Letter of Rostrud dated 06/08/2007 No. 1921‑6 in the event that an employee has unused annual holidays for previous working periods, then he retains the right to use all due annual paid holidays. Annual leave for previous working periods may be granted either as part of the vacation schedule for the next calendar year, or by agreement between the employee and the employer.

Earlier doubts on this issue arose in connection with the ratification conventions international organization Labor No.132 "On paid holidays"(Further - Convention) according to Art. 9 which the continuous part of the annual paid leave (at least 2 working weeks) is granted and used no later than within a year, and the rest of the annual paid leave - no later than within 18 months after the end of the year for which the leave is granted.

The situation is simpler if the employee used the main part of the vacation every year in the amount of 14 days, and he accumulated the remaining unused parts of the vacation. Here Convention establishes that any part of annual leave in excess of a prescribed minimum duration may be delayed, with the consent of the employee, for a period exceeding 18 months, but not exceeding separately established limits ( paragraph 2 of Art. 9).

Thus, the remaining holidays can be used by the employee within the terms (periods) agreed with the employer. And in case of dismissal, the employer will be obliged to pay compensation for all unused (accumulated) vacations ( Art. 127 Labor Code of the Russian Federation).

Nevertheless, the employer should not allow employees to arrears on vacations - primarily because working without vacation affects both the physical and the psychological state employee, as a result, labor productivity, immunity falls, the employee often goes on sick leave. Problems are possible, up to the point that an accident at work may occur.

In addition, when paying compensation upon dismissal, the employer may overpay if the employee’s salary was increased over the past year, since compensation for unused vacation is calculated based on average earnings for 12 months ( Regulation on the features of the procedure for calculating the average wages approved Decree of the Government of the Russian Federation of December 24, 2007 No. 922 ).

To avoid problems with unused vacation and payment of compensation, some employers, after 2 years without vacation, formalize the dismissal of the employee with the payment of compensation to him, and then again hire him. From a legal point of view, there seems to be no violations. But if this option is used constantly, then the inspectors may see a violation of the rights of employees: firstly, their length of service is interrupted for the next annual paid leave, and secondly, the employee may lose the rights to guarantees or payments established in the organization, for example, for continuous work experience.

Actions of the employer if the employee refuses to leave

But for such punishment to be legal, certain requirements must be met.

1. There must be a vacation schedule signed by the head of the personnel department, approved by the head of the organization and agreed with the trade union, if any. It is also desirable that there be a signature of the employee confirming his familiarization with the schedule.

2. 2 weeks before the start of the vacation, according to the schedule, the employee must be notified of the start time of the vacation. Receipt of the notification must be confirmed by the employee's signature. If the employee refuses to sign the document, an act should be drawn up about this.

3. An order is needed to grant annual leave, which the employee is familiar with. If he refuses, this fact must be recorded.

4. Not later than 3 days before the start of the vacation, it is necessary to pay the employee vacation pay ( Art. 136 Labor Code of the Russian Federation).

Do not forget that if the employee was not paid on time for the annual paid vacation or the employee was warned about the start time of this vacation later than 2 weeks before it starts, then the employer, at the written request of the employee, is obliged to postpone the vacation for another period agreed with the employee .

6. Bringing to disciplinary responsibility is carried out in accordance with Art. 192 and 193 Labor Code of the Russian Federation.

Well, if the employee still continues to go to work during his vacation, give him written notice that the time of his stay at work is not subject to payment, since he is in annual leave according to the approved vacation schedule.

It is clear that bringing to administrative responsibility for refusing to go on vacation is an extreme measure intended for those who "maliciously" evade their right to rest, creating problems for the employer. In normal cases, you can meet the needs of an employee who asks to reschedule his vacation, if any. good reasons. Then the employee must write a statement and indicate these reasons in it.

If there is no longer an opportunity to postpone the vacation, and the employee’s refusal to rest suits the employer, then by sending the employee on vacation, for this period, conclude a civil law contract with him.

Summarize. If your employees flatly refuse to go on vacation, you can:

Reschedule vacation, unless the employee did not go on vacation at all for 2 years;

Dismiss the employee, paying him compensation, and then accept (we do not recommend abusing this method);

To issue a vacation, and to conclude a civil law contract for work or the provision of services with the employee;

Issue a vacation, and bring the employee to disciplinary responsibility.

Some employers give employees vacation time. This, in principle, does not contradict the law, but it will provide unnecessary questions for inspectors.

We also remind employers that you cannot refuse to grant scheduled leave, except in cases of operational necessity and with the written consent of the employee. And if the employer illegally refuses to leave the employee on vacation and he went on vacation without permission, he cannot be fired for absenteeism ( pp. "e" p. 39 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No.2 “On the application by the courts Russian Federation Labor Code Russian Federation").

Answer: There are situations when an employee, due to a difficult financial situation, needs to work tirelessly, without vacation. The Labor Code of the Russian Federation does not prohibit (and, therefore, allows) the following. Can negotiate with the employer and transfer (with the consent of the employee) the vacation to the next working year, citing this as a production need.

At the same time, it must be borne in mind that the law prohibits not granting vacation for 2 consecutive years.

That is, not in this one - so next year you still have to take at least part of the vacation days stipulated by the employment contract.

However, some do this: before the second annual paid vacation, the employee quits of his own free will, having received monetary compensation for all unused vacation days. And then, a day or two later, he gets the same job. It is clear that such schemes occur by the "conspiracy" of the employee and the employer. If this option suits both you and the employer, then it can be used, from the point of view of the law, you are not violating anything.

In general, with regard to vacation, the right of an employee (of any private company or state organization) to rest is enshrined in the Constitution of the Russian Federation, which guarantees (sic!) The right of an employee to paid annual leave, and the Labor Code of the Russian Federation also obliges the employer to keep the employee who went on vacation, place of work and average earnings. It follows that the employer is obliged to provide the employee with paid leave every year and, if you want, “force” the latter to go on vacation, in accordance with the schedule.

In practice, this is done in the following way. At the end of each calendar year, the employer collects applications from all employees with wishes (and only!) About the time for granting vacation, in accordance with which a vacation schedule for the next year is drawn up. I emphasize in particular that the employer only takes into account the wishes of the employee, but may, in the interests of, for example, production, leave them (wishes) without satisfaction and actually “force” the employee to go on vacation in accordance with the vacation schedule.

Be sure to take into account only wishes about the time of granting leave to underage workers, pregnant women, beneficiaries of Chernobyl and some others.

The specified schedule is subject to agreement with the trade union, if one exists in the organization, and is approved by the head of the organization no later than December 16 of the current year. Further, all employees should be familiar with the schedule. The employee is familiarized with the vacation schedule, for example, by means of a notification (2 weeks before the start of the vacation), on which the employee signs, or by means of an order issued in advance (2 weeks before the start of the vacation), on which the employee also puts his signature. If the employee was not familiarized with the vacation schedule no later than 2 weeks before the start of the vacation, and if he was not paid vacation pay less than three days before going on vacation, then at the written request of the employee, the employer is obliged to postpone the vacation for another period in agreement with worker.

Vacation can be postponed for another period (taking into account the wishes of the employee) and in the event of, for example, temporary disability of the employee.

If these conditions are not met, the employer cannot force the employee to go on vacation at the time specified in the vacation schedule.

It is possible to make changes to the vacation schedule, but only with the mutual consent of the employee and the employer. If an agreement is not reached, then the employee must go on vacation. An employee's refusal to go on vacation may be regarded as a disciplinary offense, which entails disciplinary liability in accordance with labor legislation.

From all of the above, it follows that in relation to your vacation, various options are possible, you need to negotiate with the employer.

Do you have questions about the topic? Ask in the comments. Send new questions to the address marked “Question to the lawyer”.

If the company has structural divisions, the application must be signed first by the head of the division, and then by the head of the company (Instructions approved by the post of the State Statistics Committee of Russia dated 05.04.2001 No. 1). We draw up personnel documents Next, an order is issued to amend the vacation schedule (see Fig. 2). The form of the vacation schedule T-7 (approved by the post of the State Statistics Committee of Russia dated 04/05/2001 No. 1) provides for the possibility of transferring the vacation to other dates. If the employee's vacation period changes, the personnel officer (or the person responsible for maintaining personnel documents) fills in columns 8 and 9 "Transfer of vacation". In column 8, you must indicate the name of the document on the basis of which the rest period changes. As a rule, this is a statement of the employee indicating the reason for the transfer (health, family situation, etc.).

The employee goes on vacation outside the schedule

Under the law, the employer has no reason to force the employee to use the right to maternity leave. That is, if a woman has not written an appropriate application, thereby expressing a desire to continue working, the employer cannot prevent her from doing so. Maternity leave is a woman's right, not her duty, so she herself has the right to determine when she is ready to use it.

The employee goes on vacation outside the schedule

Attention

At the same time, employers believe that they do not violate the ban on not providing vacation for more than two years in a row, since the employee took at least one part of the vacation. This is the wrong approach. The fact is that the legislation does not provide for an annual basic paid leave of less than 28 calendar days. Even taking into account the division of vacation into parts, these 28 days must be used in full.

At the same time, employees must remember that the unauthorized use of vacation, as well as its transfer without the consent of the employer, is legally qualified as absenteeism and may become the basis for the employer to apply to the employee disciplinary action. Opinion 2: Irina Sidorova, Financial Advisor law firm"Taxman" If the employee came in the middle of the year The vacation schedule is drawn up in advance, so if the employee started working in the company not from the beginning of the year, there will be no data on his vacation in the schedule for the current year. However, this cannot be a reason for refusing a new employee on vacation.

He has the right to write an application for leave and, if the employer gives his consent, take it off at a time convenient for himself and the employer. The visa of the head of the enterprise on the application will be a confirmation of the agreement reached on the vacation period.

What to do if an employee does not want to go on vacation

Info

The right to leave: requirements for employers According to the law, the vacation schedule must be drawn up in advance, that is, two weeks before the new year, around mid-December. Usually, employers approach this very responsibly, so violation of the vacation schedule is not the most in the best way affects production processes. The vacation planning norm is spelled out in the Labor Code of the Russian Federation and is mandatory for both parties to labor relations.

If the employee did not go on vacation according to the schedule, what to do

At the same time, employees must remember that the unauthorized use of vacation, as well as its transfer without the consent of the employer, is legally qualified as absenteeism and may become the basis for the employer to apply a disciplinary sanction to the employee. Opinion Irina Sidorova, financial consultant of the law firm "Nalogovik" If the employee came in the middle of the year The vacation schedule is drawn up in advance, so if the employee started working in the company not from the beginning of the year, there will be no data on his vacation in the schedule for the current year. However, this cannot be a reason for refusing a new employee on vacation.
He has the right to write an application for leave and, if the employer gives his consent, take it off at a time convenient for himself and the employer. The visa of the head of the enterprise on the application will be a confirmation of the agreement reached on the vacation period.
The vacation schedule is mandatory for the employer and employees. However, situations often occur when employees ask to transfer vacation days to another period. The decision to transfer is made by the manager. The schedule of annual paid holidays is approved in advance, while the employer takes into account the wishes of employees and the dates they have chosen for vacation.

However, sometimes employees, for personal reasons due to circumstances that have arisen, want to change the planned vacation period. How to be an employer in such a situation and what documents need to be issued, the experts of the Actual Accounting magazine told. The decision is made by the employer. To go on vacation outside the schedule, the employee must write an application in any form (for an example of an application, see below).

in fig. one). It must indicate the new start date of the vacation and the reasons for its transfer.
The schedule is approved no later than two weeks before the start of the calendar year (Article 123 of the Labor Code of the Russian Federation). In this case, it is imperative to take into account the opinion of the trade union (if it exists in the organization). When an employee goes on vacation not according to the schedule The vacation schedule is mandatory for the employer and employees. However, there are often situations when they ask to transfer vacation days to another period. The decision to transfer is made by the manager. The annual paid schedule is approved in advance, while the employer takes into account the wishes of employees and the dates they have chosen for vacation. However, sometimes employees, for personal reasons due to circumstances that have arisen, want to change the scheduled period. Can they be sent on vacation without the consent of the employee and fired for refusing to go on vacation. The working year is over, 14 days left. Compensation for unused is very small, a maximum of three weeks is paid, and more often 12 -18 working days.

Vacation schedule In practice, they often do this: if an employee belongs to a category that is supposed to provide vacation at a time convenient for the employee, then the vacation schedule does not change. In this case, they simply fill in the columns containing the actual vacation date, the reason for its transfer and, if necessary, a note in the existing document. If the employee does not have privileges to choose the date of vacation, then by decision of the employer, an order is issued to change the vacation schedule.

In some cases, the schedule is not changed if the employee went on vacation earlier than the planned date (they simply fill in the appropriate fields in the existing document).
Vacation schedule. What nuances will help to avoid violations of labor laws Why is a formal approach to the vacation schedule dangerous for companies Do you need a vacation application if the employee is resting according to the schedule How to correctly arrange the provision of vacation not according to the schedule December is the traditional time for scheduling annual paid vacations for the next calendar year. The form of this document (No. T-7) was approved by the Decree of the State Statistics Committee of Russia dated 05.01.04 No. 1 On approval unified forms primary accounting documentation for the accounting of labor and its payment and is mandatory for all companies, regardless of ownership. In practice, many treat the design of a vacation schedule as a mere formality, believing that only the very fact of its existence is important in case of a labor inspectorate check.

V. V. Danilova

expert of the magazine "Personnel department of a state (municipal) institution"

All permanent employees without exception have the right to rest for at least 28 calendar days. And if one of such a number of days is not even enough, then others do not go on vacation for years. But this is not only inconvenient for the employer and, in particular, for personnel officers, but is also fraught with administrative responsibility. About how many years an employee may not go on vacation and what the employer should do if some employees do not use their annual vacation, we will talk in the article.

Reason for leave

At the same time, the vacation schedule is mandatory for both the employer and the employee.

Scheduling vacations is a rather responsible matter, especially if the organization has a large staff of employees. In such cases, at first, as a rule, schedules are drawn up in structural divisions, and then a consolidated schedule is formed. The drafting of the vacation schedule of the unit can be entrusted to the heads of these units. Based on the schedules presented by them, the personnel department draws up a consolidated vacation schedule. Moreover, the duty of the heads of departments to draw up a draft schedule is best fixed in the corresponding order.

If such powers are not granted to managers, they can simply collect their wishes from employees, on the basis of which and taking into account the requirements of labor legislation, the personnel worker will already draw up a single vacation schedule.

note

When drawing up a vacation schedule, one should take into account the right of certain categories of employees to leave at any time and the length of service to provide such a vacation. Do not forget to include in the schedule and unused vacations from previous years.

In addition, when drawing up the schedule, it will be necessary to take into account the wishes of other employees, and the order of vacations in the previous year, and the intensity of the labor process during the year, and the specifics of the organization's activities. We will have to try so that neither the interests of employees nor the interests of the employer are infringed. In order to avoid disputes, it is possible to prescribe the procedure for granting holidays in a local regulatory act and familiarize employees with it.

After drawing up the schedule, it is signed by the head of the personnel service and approved by the head of the organization or an authorized person (signed). If the enterprise has a trade union, then the schedule must be agreed with it. Despite the absence of an obligation to familiarize employees with the approved schedule against signature, this must be done.

We repeat that all these activities must be completed no later than 2 weeks before the start of the new calendar year.

We recall that, in accordance with Art. 693 of the List of typical managerial archival documents generated in the course of activities government agencies, organs local government and organizations, indicating the periods of storage, approved by the Order of the Ministry of Culture of the Russian Federation of August 25, 2010 No. 558, the vacation schedule must be stored in the organization for 1 year. Moreover, the calculation of the period is made from January 1 of the year following the year of completion of office work. That is, the vacation schedule for 2017, approved in December 2016, expires on December 31, 2017. Therefore, you need to keep it for the whole of 2017.

Transferring vacation to next year

Annual paid leave can be carried over to the next working year. If such a transfer is carried out at the initiative of the employer in accordance with Part 3 of Art. 124 of the Labor Code of the Russian Federation, two conditions must be met:

- granting an employee a vacation in the current working year may adversely affect the normal course of the organization's work;

- the employee agreed to postpone the vacation to the next working year.

The employee himself can also apply with a request to postpone the vacation for another period, including the next year. If the employer does not object, an order for such a transfer should be issued and changes should be made to the vacation schedule.

Leave postponed at the initiative of the employer must be used no later than 12 months after the end of the working year for which it was granted.

By virtue of h. 1 Article. 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, one of which must be at least 14 calendar days. The question arises: how many such parts should be in the next working year, if the vacation was completely transferred to this year? That is, should the employee use two vacations of 14 days, and the remaining 28 days in installments, or one vacation in the amount of 14 days, and the remaining 42 days in installments?

From the provisions of Art. 125 of the Labor Code of the Russian Federation, regardless of how many days of vacation the employee uses during the year, it can be concluded that one of the parts of the vacation must be at least 2 weeks continuously, and the rest of the vacation for both years can be divided into parts as agreed between the employee and employer.

note

Unused days of annual paid leave for previous periods, the employer must take into account when drawing up each new vacation schedule.

How many years can holidays not be used?

In accordance with Art. 124 of the Labor Code of the Russian Federation prohibits the failure to provide annual paid leave for 2 consecutive years, as well as the failure to provide annual paid leave to employees under the age of 18 and persons employed in work with harmful and (or) dangerous working conditions.

That is, if, as a general rule, employees may not use annual leave for at least 2 years, then employees under the age of 18 and employed in work with harmful and (or) dangerous working conditions must use leave every year.

note

Failure to provide annual paid leave for more than 2 years in a row, as well as failure to provide the unused part of annual leave when it is postponed within 12 months after the end of the working year for which it is granted, is a violation of labor law and, if checked by the labor inspectorate, a fine may be imposed on the organization in accordance with Part. 1 Article. 5.27 of the Code of Administrative Offenses of the Russian Federation.

If, nevertheless, it turned out that the employee did not use vacation for 2 years and he has accumulated 56 calendar days of vacation, should the employer give him 84 days next year or do they “burn out”? Of course, nothing “burns out”, there is no such concept in labor legislation. You will either have to give the employee a vacation of 84 days, or pay compensation for these days upon dismissal.

According to the Letter of Rostrud dated 08.06.2007 No. 1921‑6, if an employee has unused annual leave for previous working periods, then he retains the right to use all due annual paid holidays. Annual leave for previous working periods may be granted either as part of the vacation schedule for the next calendar year, or by agreement between the employee and the employer.

Note

Previously, doubts on this issue arose in connection with the ratification of the International Labor Organization Convention No. 132 “On paid holidays” (hereinafter referred to as the Convention) in accordance with Art. 9 of which the continuous part of the annual paid leave (at least 2 working weeks) is granted and used no later than within a year, and the remainder of the annual paid leave - no later than 18 months after the end of the year for which the leave is granted.

On the basis of the Convention, some courts refused to recover compensation for unused vacations from those who retired. True, the reason for the refusal was that the employee missed the statute of limitations. Thus, the Supreme Court of the Republic of Karelia in the Appeal ruling dated 03.27.2015 in case No. 33-1227/2015 noted that the period for claims for compensation for unused vacations is 21 months after the end of the year for which the vacation is granted (18 months (period in during which leave must be granted) + 3 months (the period for the employee to apply to the court)). The fact that the vacation in the calendar year was not granted in full and compensation was not paid should have been known after the end of each year of work, as a result of which the required vacation was not granted.

The situation is simpler if the employee used the main part of the vacation every year in the amount of 14 days, and he accumulated the remaining unused parts of the vacation. Here, the Convention establishes that any part of the annual leave in excess of the established minimum duration may be postponed with the consent of the employee for a period exceeding 18 months, but not going beyond separately established limits (clause 2, article 9).

Thus, the remaining holidays can be used by the employee within the terms (periods) agreed with the employer. And in the event of dismissal, the employer will be required to pay compensation for all unused (accumulated) vacations (Article 127 of the Labor Code of the Russian Federation).

Nevertheless, the employer should not allow arrears on employee vacations - primarily because work without vacation affects both the physical and psychological state of the employee, as a result, labor productivity and immunity fall, the employee goes on sick leave more often. Problems are possible, up to the point that an accident at work may occur.

In addition, when paying compensation upon dismissal, the employer may overpay if the employee’s salary has been increased over the past year, since compensation for unused vacation is calculated based on the average earnings for 12 months (Regulation on the specifics of the procedure for calculating average wages, approved by Decree of the Government of the Russian Federation of 12.24. 2007 No. 922).

Note

To avoid problems with unused vacation and payment of compensation, some employers, after 2 years without vacation, formalize the dismissal of the employee with the payment of compensation to him, and then hire him again. From a legal point of view, there seems to be no violations. But if this option is used constantly, then the inspectors may see a violation of the rights of employees: firstly, their length of service is interrupted for the next annual paid leave, and secondly, the employee may lose the rights to guarantees or payments established in the organization, for example, for continuous work experience.

Actions of the employer if the employee refuses to leave

So, what to do if the employee does not use the vacation or does not use it in full, accumulating the remaining parts with the permission of the employer, and for what liability may come, figured out. But what if an employee doesn’t want to leave for either this or next year, and he has either one reason or another? Of course, you can enter the situation once or twice, but then the problems will have to be solved both directly by the personnel officer and the employer. Therefore, it is not worth letting everything go by itself. The employee should be brought to disciplinary responsibility, for example, to start with a remark, then a reprimand.

But for such punishment to be legal, certain requirements must be met.

1. There must be a vacation schedule signed by the head of the personnel department, approved by the head of the organization and agreed with the trade union, if any. It is also desirable that there be a signature of the employee confirming his familiarization with the schedule.

2. 2 weeks before the start of the vacation, according to the schedule, the employee must be notified of the start time of the vacation. Receipt of the notification must be confirmed by the employee's signature. If the employee refuses to sign the document, an act should be drawn up about this.

3. An order is needed to grant annual leave, which the employee is familiar with. If he refuses, this fact must be recorded.

4. Not later than 3 days before the start of the vacation, vacation pay must be paid to the employee (Article 136 of the Labor Code of the Russian Federation).

note

Do not forget that if the employee was not paid on time for the annual paid vacation or the employee was warned about the start time of this vacation later than 2 weeks before it starts, then the employer, at the written request of the employee, is obliged to postpone the vacation for another period agreed with the employee .

5. An employee's return to work during vacation must be recorded in acts.

6. Bringing to disciplinary responsibility is carried out in accordance with Art. 192 and 193 of the Labor Code of the Russian Federation.

Well, if the employee still continues to go to work during his vacation, give him a written notice that the time he is at work is not payable, since he is on annual leave according to the approved vacation schedule.

It is clear that bringing to administrative responsibility for refusing to go on vacation is an extreme measure intended for those who “maliciously” evade their right to rest, creating problems for the employer. In normal cases, you can meet the needs of an employee who asks to reschedule his vacation, if there are good reasons. Then the employee must write a statement and indicate these reasons in it.

If there is no longer an opportunity to postpone the vacation, and the employee’s refusal to rest suits the employer, then by sending the employee on vacation, for this period, conclude a civil law contract with him.

Summarize. If your employees flatly refuse to go on vacation, you can:

- postpone the vacation, except for the case when the employee did not go on vacation at all for 2 years;

- dismiss the employee, paying him compensation, and then accept (we do not recommend abusing this method);

- to issue a vacation, and to conclude a civil law contract for work or the provision of services with the employee;

- issue a vacation, and bring the employee to disciplinary responsibility.

Some employers give employees vacation time. This, in principle, does not contradict the law, but it will provide unnecessary questions for inspectors.

We also remind employers that you cannot refuse to grant scheduled leave, except in cases of operational necessity and with the written consent of the employee. And if the employer illegally refuses to leave the employee and he went on vacation without permission, he cannot be fired for absenteeism (paragraph “e”, paragraph 39 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” ).