They don't go on full vacation. Reasons why an employer may not let an employee go on annual leave. Is it possible to refuse a vacation according to the schedule

Can an employer refuse to let an employee go on vacation? In some cases yes, in others no. But before understanding this issue, let us recall the basic requirements of the Labor Code of the Russian Federation regarding the provision of vacations to employees.

General rules for granting holidays

Let's start with the fact that each employee has the right to an annual paid leave of at least 28 calendar days (Articles 114, 115 of the Labor Code of the Russian Federation). At the end of each year (namely, no later than December 17), the organization must draw up a vacation schedule (form No. T-7, approved by Decree of the State Statistics Committee of the Russian Federation of 01/05/2004 No. 1) for the next calendar year (Article 123 of the Labor Code of the Russian Federation). It determines the order in which vacations are granted to employees. That is, this is a kind of plan that indicates how many and how many days each employee of the organization will go on vacation. The schedule reflects both, and assigned to employees.

Scheduled vacation

If an employee is due to go on scheduled leave soon, and you, as an employer, cannot release him due to production needs, then you will need to obtain the employee’s consent to postpone the vacation (in writing), draw up an order to transfer, and also make changes to the vacation schedule.

It happens that an employee becomes an indispensable employee while already on vacation. Then we are not talking about the transfer of vacation, in about. And that's a completely different story.

Leave on request

If the employee is going to go on vacation not in accordance with the schedule, but simply upon application, then the employer has every right to refuse him. And it does not in any way violate the rights of the employee. Because the issue of providing unscheduled vacations is always decided by agreement between the employee and the management of the organization.

Accordingly, if an employee, without the consent of the employer, decides to go on vacation and does not show up for work, then he can be fired for absenteeism (Article 193 of the Labor Code of the Russian Federation). In this case, it will be necessary to comply with the entire procedure for bringing the employee to disciplinary liability.

When an employer has no right to refuse an employee a vacation

Under certain circumstances, the employer is obliged to grant the employee leave and cannot refuse it. This:

  • annual paid leave granted to a woman before maternity leave or immediately after it, or at the end of parental leave. An employee must be released on vacation on the basis of her application (Article 260 of the Labor Code of the Russian Federation);
  • annual paid leave granted to the husband while his wife is on maternity leave (Article 123 of the Labor Code of the Russian Federation);
  • additional leave provided to individuals who combine work with study. In this case, the employee must give the employer a certificate-call from educational institution(Art. 173-176 of the Labor Code of the Russian Federation);
  • annual paid leave granted to one of the parents (guardian, trustee) working in an organization located in the Far North or an area equivalent to it. We are talking about the leave required to accompany a child under the age of 18 entering the study educational programs in organizations / institutions of secondary and higher vocational education located in another area (Article 322 of the Labor Code of the Russian Federation).

When an employee has the right to take vacation "at a convenient time for him"

Also, some categories of employees can independently choose the period of time for their vacation during the year. That is, they should be granted leave at a time convenient for them (Article 123 of the Labor Code of the Russian Federation). And the employer cannot own initiative adjust dates or deny them vacation. Such a privileged position in the following categories:

  • workers under the age of 18. By the way, they are entitled to annual paid leave for 31 calendar days (Article 267 of the Labor Code of the Russian Federation);
  • women and single men with two or more children under the age of 12. They have a priority right to receive annual leave in the summer or other time convenient for them (paragraph “b”, paragraph 3 of the Decree of the Central Committee of the CPSU, the USSR Council of Ministers of 01.22.1981 No. 235, Order of the USSR Council of Ministers of 10.30.1985 No. 2275r, Decision of the Supreme Court of the Russian Federation dated June 17, 2014 No. AKPI14-440);
  • employees recalled from annual paid leave. They are given the right to use the rest of the vacation at any time convenient for them during the current year or to add it to the vacation for the next working year (Article 125 of the Labor Code of the Russian Federation);
  • . They have the right to take leave at work part-time simultaneously with annual leave provided at their main place of work (Article 286 of the Labor Code of the Russian Federation);
  • one of the parents (guardian, guardian, foster parent) raising a disabled child under the age of 18 (Article 262.1 of the Labor Code of the Russian Federation);
  • military spouses. They are granted leave simultaneously with the leave of their spouses (clause 11, article 11 of the Law of May 27, 1998 No. 76-FZ);
  • honorary donors of Russia (clause 1, part 1, article 23 of the Law of July 20, 2012 No. 125-FZ);
  • some categories of Chernobyl victims (clause 5, article 14 of the Law of the Russian Federation of May 15, 1991 No. 1244-1).

The employees named above may use their leave without the consent of the employer. This means that even if the company's management is against it, and despite this, the employee goes on vacation in the period of time he needs, dismissing him for absenteeism would be the wrong decision. After all, it is likely that after this the employee will be restored to work by a court decision. And then the employer will have to pay him not only the average earnings for the period from the day the employee was dismissed until the day he was reinstated at work, but it is also possible compensation for moral damage if the employee declares it in court and the court supports him (Art. 234, 237 of the Labor Code of the Russian Federation, paragraphs "e" p. 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

"Compulsory" unpaid leave

There are also such workers who, on the basis of their applications, must be granted leave without pay. The relevant rules on leave without pay are contained not only in the Labor Code of the Russian Federation, but also in other legislative acts. A number of specific cases and the duration of leave for each of them are indicated in the table below.

If every day you listen to the sounds of the sea, raising your palm to your ear, if you are comfortably seated in an office chair, imagine how fictitious waves tickle your feet, then it's time to write an application for a vacation. But what if the employer does not give vacation? How to convince the authorities that you need a rest? Let's figure it out.

Every employee has the right

for annual paid leave

Every citizen has the right to basic annual paid leave. Russian Federation in accordance with the Constitution and the Labor Code of the Russian Federation.

And if you also work on employment contract, then you simply do not have the right to refuse. Refusal would be a violation current legislation country. And to be more precise, it is a violation of Article 37 of the Constitution of the Russian Federation.

The Law says that everyone who gets a job at an enterprise under an employment contract, the boss is obliged to give time to rest on weekends and holidays common to the country, and also annually provide the employee with the opportunity to take off the required 28 calendar days. When an employee is granted leave, his place of work, position and monthly salary are retained.

The Labor Code of the Russian Federation (Article 124) notes that the employer does not have the right to:

1. delay vacation for more than two years,

2. do not give annual paid leave underage workers, and employees of enterprises with harmful or hazardous working conditions.

The procedure for granting annual

paid holidays under the Labor Code of the Russian Federation

The procedure for providing employees with annual paid leave is prescribed by Article 122 of the Labor Code of the Russian Federation.

The law stipulates that employees must be provided with leave for each working year, regardless of the quality and speed of the tasks performed by the employee. Remember that the “work year” starts on the date the employee is hired, and the “calendar year” starts on January 1st.

The annual basic vacation is, as mentioned earlier, 28 calendar days. Vacations of more than 28 days, the so-called extended vacations, are also provided. This type of leave is granted to minors, the disabled, the elderly, civil and municipal employees, judges, employees of law enforcement agencies, deputies, rescuers, citizens working with chemicals, teachers, medical workers and other categories of citizens provided by law.

An employee's vacation for an employer is a factor that slows down the activity of the entire organization, so most employers take their legal obligations to provide vacations to their employees very seriously.

Usually in organizations vacation schedule is in place, which clearly shows in what period of time this or that employee will be absent. The vacation schedule is an official document signed by all employees of the organization and agreed with the trade union body.

If the employee’s vacation time indicated in the schedule did not suit him, he has the right to ask for the transfer of his vacation to a more suitable period of time for him.

In order to go on vacation, you need to apply to the director, with the following information:

From whom the application is from (name, position)

Type of vacation (regular paid)

The period for which the vacation is supposed to be taken (start date and end date)

Date of writing the application, signature.

How many days to write a vacation application is up to you. The norm is a period of two weeks. But it is better not to be too lazy and learn about the relevant traditions in the company, perhaps it is customary in the team to warn about everything several months in advance.

Can employers refuse to

paid vacation for an employee?

Quite often, bosses suggest that an employee take fewer vacation days, referring to the fact that their business is not state structure, and backing it up with some internal documents. This action is illegal in the second part of Article 11 of the Labor Code of the Russian Federation.

It has also become popular to divide the vacation into parts. This is very convenient for someone, but if you want to fully use the days off for you in one period, you should know that they cannot forbid you to do this. To divide the vacation into parts, the employer needs your consent.

But today, situations are not uncommon when an employer refuses to leave his employee at all, referring to the fact that the applicant for leave is an exceptional professional and an indispensable person in the organization.

And what should an employee who dreams of rest in such a situation do? To begin with, it is hard to understand for yourself that the director does not have the right to refuse leave to his subordinate.

Try to talk to the director, as they say, "heart to heart". Explain that you need a vacation and you cannot continue to work with the same passion and quality until you have a rest. Many directors make concessions after such a conversation.

The accumulation of vacation debt is a violation of the law. Therefore, during inspections, the employer may be imposed administrative liability under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation. Fines for this violation, despite the fact that since January 1, 2015, our sanctions have been sharply tightened, have remained at the level up to 50,000 rubles for entity and up to 5,000 rubles per guilty official.

In fact, the fine itself can scare not every employer. However, if at the same time an accident occurred in the organization with an employee who, in violation of the law, was not granted regular annual paid leave, then here you can already “jump” to the point of accusation in gross violation of labor protection standards and initiation of criminal proceedings under Art. 143 of the Criminal Code of the Russian Federation, which is definitely more annoying:

Document Fragment

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Article 143 "Violation of labor protection requirements" of the Criminal Code of the Russian Federation

1. Violation of labor protection requirements committed by a person who is entrusted with the obligation to comply with them, if this negligently entailed the infliction of grievous harm to human health, -

is punishable by a fine in the amount of up to 400,000 rubles or in the amount of wages or other income of the convicted person for a period of up to 18 months, or by compulsory labor for a term of 180 to 240 hours, or by corrective labor for a term of up to 2 years, or by forced labor for a term of up to 1 year, or by deprivation of liberty for the same term with deprivation of the right to borrow certain positions or certain activities for a period of up to 1 year or without it.

2. An act provided for by paragraph 1 of this article, which negligently caused the death of a person, -

shall be punishable by compulsory labor for up to 4 years or imprisonment for the same period with or without deprivation of the right to hold certain positions or engage in certain activities for up to 3 years.

3. An act provided for by paragraph 1 of this article, which negligently caused the death of two or more persons, -

shall be punishable by forced labor for up to 5 years or imprisonment for the same period with or without deprivation of the right to hold certain positions or engage in certain activities for up to 3 years.

However, the accumulation of arrears of annual leave may have other consequences that are not related to the punishment of the employer as such.

"Burning" vacations

The accumulation of annual leave can lead to the fact that they can "burn out". Such arbitrage practice went to the country after ratification. Despite the fact that it is not prevailing, often the courts decided on such "burning".

In particular, in Moscow, the following judicial acts can be cited as an example: cassation ruling of the Moscow City Court dated December 24, 2014 No. 4g / 9-12981 / 2014, appeal rulings dated April 14, 2014 in case No. case No. 11-24800/2013, etc. There are similar decisions in other regions. Of course, from the point of view of protecting the rights of workers, this is a rather controversial position of the courts, but, as they say, “you can’t throw words out of a song” and the fact remains: the courts can make such decisions. And here already the employer has other consequences - mostly moral and image ones, and also, of course, the employees themselves suffer.

Sanctions from the tax authorities

If this dispute does not reach the court, the employer may be punished by the tax authorities.

The legislator has limited the maximum debt for the next annual leave, so if the employer accumulates it above the limits established by law, he cannot make payments on such debt by attributing it to the reduction of the corporate income tax base. In this case, the tax authorities, referring to Art. 255 of the Tax Code of the Russian Federation, require the attribution of payments for such leave at the expense of profit, which is quite logical, but business owners may not like it very much.

Most often, this situation looks like this:

Example 1

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The employee did not use the vacation for several years or did not use it in full, due to which, for example, a debt in the amount of vacation for 5 years accumulated. And the employee quits. The employer under Art. 127 of the Labor Code of the Russian Federation pays compensation to him upon dismissal for the entire unused vacation(for all 5 years), but only payment for 2 years can be attributed to expenses, since the rest of the debt has accumulated in violation of the law.

In addition, upon dismissal, the employer pays such compensation according to the last average earnings, i.e. in a larger amount than he would pay the employee if he used the next annual vacation at its normal time each year.

The employer often does not take this situation into account and allocates the entire amount of the payment to expenses, which is further interpreted by the tax authorities as a violation during inspections and sanctions are applied already within the framework of violation of tax laws. Despite the fact that the position of controllers is undisputed, the employer will have to defend his point of view in court.

Decline in labor productivity

Another consequence of working without holidays, which, of course, should be taken into account, is a drop in labor productivity, a higher level of morbidity and occupational injuries, and professional “burnout” of workers. After all, the duration and necessity of this vacation is not a whim, but a physiological need to restore a person's working capacity. This is shown by ongoing research in all international practice.

We comply with legal requirements!

Therefore, it is necessary to strictly control that the vacation debt does not exceed the limits established by law! And by the way, what is this beyond?

Here the situation develops differently, taking into account the fact that the limit is set in Art. 124 of the Labor Code of the Russian Federation and Art. 9 of ILO Convention No. 132. In particular, the courts, when deciding on “burning”, apply the norms of the Convention and consider that this limit is one and a half year debt: that is, if for a year of work a person is entitled to a vacation of 28 calendar days, then for a year and a half of work - already 42 calendar days. But the tax authorities, applying Art. 124 of the Labor Code of the Russian Federation, they believe that this biennial debt equal to 56 calendar days.

So how many days is still an excess of the allowed vacation debt? According to Art. 124 Labor Code of the Russian Federation if the employee did not use the vacation during the year for some good reason (and this should be the exception rather than the rule), then he is obliged to use the vacation next year. It is forbidden not to grant vacation for 2 consecutive years.

According to Art. 9 ILO Convention No. 132 the minimum part of the vacation (according to Russian legislation is 14 calendar days) must be used within 1 year, and the remainder no later than 18 months at the end of the working year for which the leave is granted. That is, if we count according to Art. 9 of ILO Convention No. 132, a debt of 42 (28 + 14) calendar days is the maximum, which cannot be exceeded (see Example 2).

How to go on vacation if the employer does not let go: Vacation is one kind of vacation type. One of the provisions of the Labor Code refers to this. Vacation is a period of time that an employee uses according to his plan. During the vacation, a person does not perform his duties during the specified period. Vacation is distinguished by its duration and is one of the most continuous types of recreation. If the director does not let go on vacation, then the issue is regulated by law.

The duration of the leave is regulated by legislation, according to which employees of companies are granted annual leave. At the same time, the organization retains the place of work for the employee and average salary. The duration of the annual leave is 28 business days. Planned vacation is always paid. The legislation obliges the organization to provide leave to each employee every year worked. If the employer does not let go on vacation, the employee, based on legislative framework may exercise this right independently.


The first vacation can be taken after six months of continuous service. If they are not allowed to go on vacation, you need to rely on Labor Code, which lists the terms that fit into the length of service. Based on them, the employee can go on vacation with pay. These include:

Actual time spent at work;
The time of actual absence from the organization, but the employee retained his place of work and annual leave by law;
Time of forced absence from work due to illegal dismissal and suspension from work;
Other criteria that are provided for by the internal acts of the company.

This is a list of periods to be included in continuous experience work. But he is not complete. It is the responsibility of the employer to include these items in the length of service, but in addition, the employer, at his own expense, can expand this list. The Labor Code defines several more periods that cannot fit into the worker's length of service. These include:

The period of absence of an employee in the organization without good reason;
Appearance in alcoholic intoxication;
period of maternity leave;
Period, leave at their own request, without pay.

This list is complete. However, the employer, at his own expense, can include these periods in the employee's length of service. For example, the length of service can include the period of caring for a small child. The implementation of the vacation does not depend on the discretion of the employer, therefore, if the employer does not let you go on vacation, then relying on legislative articles, your right can be exercised legally. The code indicates those categories of workers who are provided with mandatory leave after six months of service. These include:

Women in maternity leave;
Underage employees;
worker who adopted a newborn.

The law may designate other categories that must be granted leave after a continuous six-month service. If they are not allowed to go on vacation, then this will become the basis for its implementation on their own, since the time of vacation does not depend on the wishes of the employer. In order to take a vacation, the employer must submit an appropriate application. Leave for the second year of service and subsequent, then it can be provided according to the schedule in the requested or specified period.

Every year, the organization draws up a vacation schedule, taking into account the opinion of the local trade union organization. This document is internal normative act, and applies to every employee of the organization. The schedule must be approved before the end of the working year. If the director does not let go on vacation, you must request a vacation schedule for review.

If the organization does not have such a schedule, then the employees themselves determine convenient time for relax. If employers do not let go on vacation, and the organization does not draw up a schedule, this cannot prevent the employee from going on vacation. The employee can exercise this right independently. For this, a written application is written two weeks before the vacation. The period when you can warn the employer about the planned vacation is indicated in the legislation.


Vacation schedule is important for all employees of the organization. Therefore, the employer is obliged to provide leave, and the employee is obliged to use it at the set time. In the schedule, the time of use of the vacation is usually indicated. After drawing up the schedule, the employer is obliged to notify the employee about the time of his vacation at least two weeks in advance in writing. But, if at work they don’t let go on vacation, the employee may postpone the leave, subject to the provisions that are provided by law.

The employer must take into account the rights certain categories workers during scheduling. They have the right to use the vacation time according to their personal preferences. This category includes pregnant women, the disabled and minors.

This category of employees is obliged to provide the employer with a written application, which will indicate the terms for using the vacation. Vacation periods for this category of employees should be indicated in the schedule. In those circumstances where the employee can determine the time of vacation, the employee may apply to the employer with a request to change his own schedule. The employee's application is satisfied by making changes to the schedule, or the employee can simply go on vacation, according to his application.

The period of leave granted can be agreed upon by both parties. This agreement should worsen the position of the worker in relation to the legislation.

 

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