Do not let go full of vacation. The reasons for which the employer may not let the employee on the annual leave. Is it possible to refuse to schedule

Can an employer not let go of an employee on vacation? In some cases - yes, in others - no. But before you understand this issue, let us recall the basic requirements of the Labor Code of the Russian Federation regarding the provision of holidays to employees.

General rules for providing holidays

Let's start with the fact that each employee has the right to an annual paid vacation for a duration of at least 28 calendar days (Art. 114, 115 of the Labor Code of the Russian Federation). At the end of each year (namely, no later than December 17), the organization should contain a schedule of vacations (form No. T-7, approved. Decree of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1) for the next calendar year (Article 123 of the Labor Code of the Russian Federation). It defines the sequence of providing holidays to employees. That is, this is a certain plan in which it is indicated by each employee of the organization to go on vacation. The chart reflects both, and, supposed to employees.

Vacation by schedule

If the employee must soon go on schedule on vacation, and you, as an employer, cannot let him release it in connection with the production necessity, then you will need to enlist the consent of the employee for vacation transfer (in writing), make an order of transfer, as well as make changes to the schedule of vacations.

It happens that the employee becomes an indispensable employee being already on vacation. Then it is not about transferring leave, in about. And this is a completely different story.

Vacation by application

If the employee is going to go on vacation not in accordance with the schedule, but simply according to the application, then the employer has the full right to refuse him. And at the same time, in no way violates the rights of the employee. Because the issue of granting unscheduled holidays is always solved in coordination between the employee and the management of the organization.

Accordingly, if an employee without consent to the employer decides to go on vacation and will not appear, it will be possible to fire it for the program (Art. 193 of the Labor Code of the Russian Federation). At the same time, it will be necessary to follow the entire procedure for attracting an employee to disciplinary responsibility.

When the employer is not entitled to refuse an employee on vacation

Under certain circumstances, the employer must provide a vacation to the employee and cannot refuse him. It:

annual paid vacation provided by a woman before maternity leave or immediately after it, or after graduating from making a child care. On vacation, the employees must be released on the basis of her statement (Art. 260 of the Labor Code of the Russian Federation);
annual paid vacation provided by her husband during the period of finding his wife on maternity leave (Article 123 of the Labor Code of the Russian Federation);
additional vacationprovided to those who combine work with learning. At the same time, the employee must transfer a certificate to the employer from educational institution (Art. 173-176 TK RF);
annual paid vacation provided to one of the parents (guardianship, trustee), working in an organization located in the area of \u200b\u200bthe Far North or an equivalent locality. We are talking about vacation required to accompany the child under the age of 18 coming to training on educational programs in the organization / institution of secondary and higher vocational educationlocated in another area (Art. 322 of the Labor Code of the Russian Federation).

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

Also, some categories of workers can independently choose a period of time for their vacation during the year. That is, they must be provided at a convenient time for them (Art. 123 of the Labor Code of the Russian Federation). And the employer will not be able to own initiative Adjust the dates or refuse them on vacation. Such a privileged position in the following categories:

workers under the age of 18. By the way, it is allowed annual paid vacation for 31 calendar day (Art. 267 of the Labor Code of the Russian Federation);
women and lonely men having two or more children under the age of 12. They have a primary right to receive annual holidays in a summer or other time convenient for them (PP. "B" of paragraph 3 of the decisions of the Central Committee of the CPSU, Sovmina of the USSR from 01/22/1981 No. 235, the Order of the Sovmina of the USSR from 10/30/1985 No. 2275r, decision Supreme Court of the Russian Federation of 06/17/2014 No. AKPI14-440);
workers withdrawn from annual paid leave. They are given the right to use the remaining part of the leave at any time convenient for them during the current year or to attach it to vacation for the next working year (Article 125 of the Labor Code of the Russian Federation);
. They have the right to take leave for part-time work simultaneously with the annual leave provided at the main place of work (Art. 286 of the Labor Code of the Russian Federation);
one of the parents (guardian, trustee, adoptive parent), educating a disabled child under the age of 18 (Art. 262.1 of the Labor Code of the Russian Federation);
spouses of military personnel. Her holiday is provided simultaneously with the holidays of spouses (paragraph 11 of Art. 11 of the Law of 27.05.1998 No. 76-ФЗ);
honorary donors of Russia (paragraph 1 of Part 1 of Art. 23 of the Law of July 20, 2012 No. 125-FZ);
some categories of Chernobyl (clause 5 of Article 14 of the Law of the Russian Federation of 15.05.1991 No. 1244-1).

The employees named above can take advantage of their holidays without the consent of the employer. This means that even if the company's management will be against, and the employee despite this will go on vacation in the period of time you need, dismissing him for the ruster will be an incorrect decision. After all, the likelihood is great that after that the employee will recover at work by court decision. And then the employer will have to pay him not only the average earnings for the period from the date of the dismissal of the employee before the day of recovery at work, but it is possible to compensate for non-pecuniary damage if the employee declares it in court and the court will support it (Art. 234, 237 of the Labor Code of the Russian Federation, PP . "D" p. 39 Resolutions of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

"Mandatory" vacation without detention

There are also such workers who, on the basis of their applications, must be given a vacation without detention. The appropriate vacation standards without salaries are contained not only in the TK RF, but also other legislation. A number of specific cases and the duration of the vacation each of them are listed in the table below.

If you listen to the sounds of the sea every day, bringing his palm to the ear, if you, conveniently sitting in the office chair, imagine how fictional waves tickle your legs - it means it's time to write an application for a vacation. But what if the employer does not give a vacation? How to convince the authorities in the fact that you are vital for vacation? Let's deal with.

Each employee has the right

for annual paid leave

The right to the annual primary paid vacation has every citizen Russian Federation In accordance with the Constitution and the Labor Code of the Russian Federation.

And if you are also working on labor TreatyYou just have no right to refuse. Failure will be a violation current legislation countries. And if you become more accurate, then violation of Article 37 of the Constitution of the Russian Federation.

The law tells about the fact that everyone who is arranged for the employment contract is obliged to give time to rest on weekends and common holidays for the country, and also annually provide an employee with the opportunity to fight 28 calendar days. When providing an employee of vacation, its place of work is retained, the position and size of the salary for the month.

In the TK RF (Art. 124) it was noted that the employer has no right:

1. Retain a vacation for more than two years,

2. Do not give an annual paid vacation minor workers, and at employees of enterprises with harmful or hazardous health conditions.

The procedure for providing annual

paid holidays on the TK RF

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

The law is negotiated that the release of workers should provide for each working year, regardless of the quality and speed of the tasks performed by an employee. Remember that the "working year" begins from the moment the employee is admitted to work, and the "calendar year" originates from January 1.

Annual main vacation is, as already written earlier, 28 calendar days. It also provides for holidays that make up more than 28 days, the so-called extended leave. This type of holidays are provided by minors, disabled, elderly people, civil and municipal employees, judges, power structures, deputies, rescuers, citizens working with chemicals, educators, medical workers and the other provided by law, citizens categories.

Employee vacation for the employer is a factor that slows down the activities of the whole organization, so most employers are approaching legal obligations to provide holidays to their employees very seriously.

Usually in organizations legal schedule is being conductedwhich shows that one or another employee will be absent for the time period. The schedule of vacations is the official document that is signed by all employees of the organization and is consistent with the trade union authority.

If the employee's vacation time specified in the chart did not suit, he has the right to ask for the transfer of his recreation to a more suitable time interval for it.

In order to go on vacation, you need to apply to the director, indicating the following data:

From whom statement (name, position)

Vacation Type (next paid)

The period for which is expected to take a vacation (start date and date of completion)

Category writing date, signature.

For how many days to write an application for a vacation to solve you. The norm is considered a period of two weeks. But it is better not to be lazy and learn about the relevant traditions in the company, perhaps the team is made to warn about everything in a few months.

Can employers do not give

paid vacation employee?

Quite often, the chiefs offer to take an employee fewer days to rest, referring to the fact that their business is not state structure, and reinforcing it with any internal documents. This action is illegally the second part of Article 11 of the Labor Code of the Russian Federation.

Also popular has become divided into parts. Someone is very convenient, but if you want to fully use the weekend you put in one period, know that you cannot ban it. To divide holidays on the part of the employer requires your consent.

But today there is a situation where the employer and at all refuses to leave his employee, referring to the fact that the vacation applicant is an exceptional professional and an indispensable person in the organization.

And what to do an employee who dreams about rest in such a situation? To begin with, it is firmly for yourself to understand that the director has no right to refuse to leave his subordinate.

Try to talk to the director, as they say, "souls." Explain that your vacation is needed and you cannot continue to work with the former excitement and quality until you rest. Many directors after such a conversation go for concessions.

HAY APPERE OF DESTRUCTION LAW is a violation of legislation. Therefore, when conducting checks on the employer may be imposed administrative responsibility under Art. 5.27 Administrative Code. Penaltles for this violation, despite the fact that from January 1, 2015, we had sharply tightened sanctions, remained at the level up to 50 000 rubles on entity and up to 5,000 rubles per guilty official.

In fact, the fine itself can scare far from every employer. However, if at the same time an accident occurred at the organization with an employee who, in violation of the legislation, was not given an annual regular paid vacation, then here you can already "surpendate" before the accusation in the rough violation of the norms of labor protection and initiating a criminal case under Art. 143 of the Criminal Code of the Russian Federation, what is already undoubtedly more unpleasant:

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

1. Violation of labor protection claims, committed by a person who is entrusted with respect for their observance, if it has affected the negligence causing grievous harm to human health, -

shall be punished with a fine in the amount of up to 400,000 rubles or in the amount of wages or other income convicted for a period of up to 18 months, or mandatory work for a period of 180 to 240 hours or correctional work for up to 2 years, or forced work for up to 1 years or imprisonment for the same period with deprivation of the right to hold certain positions or engage defined activities For up to 1 year or without it.

2. The act stipulated by the first of this article, which caused the death of a person by negligence -

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

3. The act stipulated by the first paragraph of this article, which caused the death of two or more persons by negligence -

it is punished with compulsory work for a period of up to 5 years or imprisonment for the same period with deprivation of the right to hold certain positions or engage in certain activities for up to 3 years or without any.

Nevertheless, the accumulation of debt on annual leave may also have other consequences that are not affiliated with the punishment of the employer as such.

"Combustion" of vacations

The accumulation of annual leaves can lead to what they can "burn". Such arbitrage practice Went in the country after ratification. Despite the fact that it is not prevalent, often the courts decided on such "combustion".

In particular, in Moscow, the following judicial acts can be brought as an example: the cassation definition of the Moscow City Court of 24.12.2014 No. 4G / 9-12981 / 2014, the appellate definitions of 04/14/2014 in case No. 33-12248, from 09/20/2013 Case No. 11-24800 / 2013 and others. Similar solutions are also on other regions. Of course, in terms of protecting the rights of workers, this is a rather controversial position of the courts, but as they say, "I will not throw out the words song" and the fact remains: the courts such solutions can accept. And here the employer has other consequences - mostly moral and image, and also, naturally, the workers themselves suffer.

Tax authorities

If this dispute does not reach the court, the employer can punish the tax authorities.

The legislator limited the maximum debt on the next annual leave, therefore, if the employer accumulates it above the limits established by law, payments for such debts can not be carried out by attributing a database on the income tax of organizations. 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 by profits, which is quite logical, but may not greatly like business owners.

Most often, this situation is as follows.

Example 1.

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Worker for several years did not use vacation or used it not completely, due to which it accumulated, for example, debt in the amount of vacation for 5 years. And the worker is dismissed. Employer under Art. 127 TC RF pays him upon dismissal compensation for the whole unused vacation (for all 5 years), but can only be expected to pay for 2 years, since the rest of the debt has accumulated in violation of the law.

In addition, when dismissal, the employer pays such compensation for the latest average earnings, i.e. more than paid the employee, we use the next annual leave In its normal time in every year.

The employer often does not take into account this situation and the entire amount of payment relates to the costs that further when conducting inspections, tax authorities are treated as a violation and sanctions apply already as part of a violation of tax legislation. Despite the fact that the position of the controllers of heavenly, the employer will have to defend its point of view in court.

Falling productivity

Another consequence of work without holidays, which, of course, should be considered, is a drop in labor productivity, a higher level of morbidity and industrial injuries, professional "burnout" of workers. After all, the duration and necessity of this vacation is not solar, and the physiological need to restore human performance. This shows the conducted studies in all international practice.

Observe the requirements of the legislation!

Therefore, it is necessary to clearly control so that the debt on vacation does not exceed the limits established by law! And by the way, what kind of limits?

Here the situation develops in different ways, taking into account the fact that the limit is established in Art. 124 TK RF and in Art. 9 ILO Convention No. 132. In particular, the courts when making a decision on "combustion" apply the norms of the Convention and believe that this limit is one-year debt: That is, if for the year of work, a person is supposed to leave a length of 28 calendar days, then for a year and a half work - already 42 calendar Day. But the tax authorities applying Art. 124 TK RF, believe that this biennial debtequal to 56 calendar days.

So how many days is the excess of permitted debt on vacation? According to Art. 124 TC RF If the employee during the year did not use a vacation for some respect (and it should be more exclusion than the rule), then it is obliged to use vacation next year. It is prohibited for failure to leave for 2 years in a row.

Under art. 9 ILO Convention No. 132 The minimum part of the holiday (on Russian legislation is 14 calendar days) it is necessary to use for 1 year, and the residue is no later than 18 months At the end of the working year, for which the vacation is provided. That is, if you consider under Art. 9 ILO Convention No. 132, debt in 42 (28 + 14) calendar days is maximum, exceeding which cannot be (see Example 2).

How to go on vacation if the employer does not let go: Vacation is one of the types of recreation. This refers to one of the provisions of the Labor Code. Vacation is a period of time that is used by an employee in its plan. At the time of vacation, a person does not fulfill 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, the question is regulated by law.

The duration of the vacation regulates the legislation according to which the employees of the companies are provided annual leave. At the same time, the organization retains the place of work and middle salary. Annual holiday duration is 28 business days. Planned vacation Always paid. Legislation obliges the organization to provide each employee to each employee every worker. If the employer does not let go on vacation, the employee, based on legislative Basemay implement this right independently.

The first vacation can be taken after six months of continuous experience. If you are not allowed on vacation, you need to rely on Labor Codewhich lists the timing that fit into the work experience. Based on them, the employee can be released with salary preservation. These include:

The actual time spent at work;
Time, the actual absence in the organization, but, the employee has survived the place of work and annual leave by law;
Time forced lack of work due to illegal dismissal and removal from work;
Other criteria are provided for by the company's internal acts.

This list of periods is subject to inclusion in continuous work experience. But he is not complete. The obligation of the employer includes the inclusion of these points in the experience, but besides this, the employer can expand this list at the expense of its funds. The Labor Code is determined by a few more periods that cannot fit into an employee's experience. These include:

The period of lack of an employee in the organization without good reasons;
Appearance in alcohol intoxication;
Maternity leave;
Period, holidays at your own request, without salary salary.

This list is complete. However, the employer for his funds can include the specified periods in the experience of the employee. For example, in the experience you can include a period of care for small child. The sale of leave from the discretion of the employer does not depend, so if the employer does not let go on vacation, then relying on the legislative articles, it can be implemented legally. The Code indicates those categories of workers who are required after a six-month experience. These include:

Women B. maternity leave;
Minors employees;
An employee who adopted the newborn.

In the law, other categories may be marked after a continuous six-month experience. If you are not released on vacation, it will become the basis for its implementation on its own, since the vacation time from the desires of the employer does not depend. To go on vacation, the employer needs to submit a corresponding statement. Leave for the second year of experience and subsequent, it can be provided according to the schedule in the requested or specified period.

Every year, the organization is a schedule of vacations, taking into account the opinion of the local trade union organization. This document is internal regulatory actand applies to each employee of the organization. The schedule must be approved until the end of the working year. If a the director does not let go on vacation, you need to request a vacation schedule for familiarization.

If there is no such schedule in the organization, then the employees themselves determine convenient time for relax. If employers are not released on vacation, and the organization does not contain a schedule, it cannot prevent the employee to go on vacation. This right employee can realize independently. For this, written a written statement for two weeks before the holidays. Term when you can warn the employer about the planned vacation, indicated in the legislation.

Vacation schedule is important for all employees of the organization. Therefore, the employer is obliged to provide a vacation, and the employee is obliged to be used at the time being. In the graph, it is usually indicated by the time of the use of vacation. After drawing up the schedule, the employer must warn an employee about the time of his vacation at least two weeks in writing. But, if at work is not released on vacation, the employee can transfer vacation with regard to the provisions provided for by law.

The employer must take into account the rights some categories employees during the compilation of the schedule. They have the right to use vacation time according to personal preferences. This category includes pregnant women, disabled and juvenile.

This category of workers is obliged to provide the employer with a written statement where the timing of the use of the vacation will be indicated. Lesson periods of this category of workers should be listed in the chart. In those circumstances, when an employee can determine vacation time, an employee can access the employer with a request to change its own schedule. The application of the employee is satisfied by making changes in the schedule, or an employee can simply go on vacation, according to his application.

The term of the vacation provided may be specified by two parties. This agreement should worsen the position of the employee in relation to legislation.

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