Unused vacation. Compensation for all unused holidays - are there limits? If the year was not a vacation

For the vast majority of employees, vacation time is a long-awaited and joyful period. The right to rest is guaranteed by the state and employers are obliged to regularly provide legal leave to subordinates. True, sometimes this norm is violated, and if the neglect of it by the employer can sometimes still be somehow explained, then the cases when the employee, for some reason, does not want to go on vacation, are non-standard and not always explainable. However, regardless of the reason, the refusal of an employee to leave for the management and personnel department of the enterprise is always a headache.

The right to leave: requirements for employers

According to the law, it must be drawn up in advance, that is, two weeks before the new year, around mid-December. Usually, employers approach this very responsibly, so a violation of the vacation schedule does not have the best effect on 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. The presence of a schedule allows you to take into account the interests of all employees of the enterprise, as well as its management, and at the same time ensure the continuity of the performance of labor tasks.

That is, in fact, the law does not leave the employee the right to refuse leave at his own discretion or to transfer it to any other periods. On the contrary, the Labor Code of the Russian Federation (Article 124) strictly regulates the time at which the right to rest must be exercised - no later than 12 months after the advent of the year to which the vacation belongs.

To avoid the temptation for an employee to refuse leave at the most inopportune moment, lawmakers have developed a procedure for granting leave. In particular, a specialist in the personnel department of the enterprise two weeks before the start of the vacation must notify the future vacationer about this in writing. This paper, signed by the employee, is, one might say, a receipt that he agrees with the terms and date of the vacation and is ready to use it at the appointed time.

Attention! If the employee refuses to sign a notice of leave, it is necessary to draw up an act of refusal with familiarization. This document will protect the rights of the employer in case of disputed judicial situations.

The employee does not want to go on vacation: options for solving the problem

If the employee is persistent and does not want to leave his workplace at any time planned in accordance with the vacation schedule, the organization's management has the right to go in several directions.

1. Can reschedule vacation, but only if the employee has good reasons with an evidence-based documentary base. This option is a compromise and the most sparing for both parties. In addition, the employer is obliged to postpone vacation days if the employee did not bother to warn about the vacation a day of the week before him in writing against signature, and also if he was paid vacation pay later than the statutory deadline. However, it is worth remembering that the transfer of vacation will not be possible if the employee has not gone on vacation in a row for more than two years.

   Attention! If an employee refuses to go on vacation and no persuasive measures apply to him, the employer has every right to bring him to disciplinary responsibility for ignoring the order of the head.

2. An employer may provide a subordinate weekend vacation. According to the law, not only working weekdays, but also weekends are considered calendar holidays, with the exception of public holidays, which are not related to vacation and are not paid. In other words, if an employee expressed a desire that the vacation be granted to him on weekends, then the employer can meet him halfway and count Saturdays and Sundays as vacations, which will need to be paid. Here it is required to observe only one important condition: the vacation can be divided into an unlimited number of periods, the main thing is that one of them should be two weeks long.
3. Another option used is fire an employee and then hire him back to the staff of the company. This method will allow the employer to avoid possible problems during inspections by the labor inspectorate, as well as to respect the rights of all parties to the labor process. The positive side here is the fact that neither the employee nor the employer should justify their decision in any way: the practice is such that the reinstatement of employees in their previous jobs has become not so rare, one might even say, a common occurrence. But you need to remember that for unspent vacation, the employee is entitled to monetary compensation, which does not depend on the grounds for which the employment relationship was broken, therefore, upon dismissal, the employee will have to pay this money in full and without fail.

An employee does not want to go on a free vacation

It happens that firms are faced with the need to send all their employees for some time to. This can be a good way for the enterprise to get out of a difficult financial situation, but at the same time, employees, as a rule, are not at all happy with such a prospect. How to be in such situations?

By law, an employer is not entitled to unilaterally send employees on unpaid leave. Such a measure is possible only with the voluntary expression of the will of the employees themselves and after they write the appropriate written statements with a clear indication of the duration and timing of such vacations.

Moreover, if an employee demanded leave without pay, the employer, by law, does not have the right to refuse him at all. Otherwise, it will be considered a serious violation of the labor rights of the staff and may result in administrative penalties and fines.

If an employee does not want to go on maternity leave

Maternity leave is the legal right of every working woman to prepare for the birth of a child in calm conditions, outside the working process. However, there are cases when employees of enterprises refuse to go on such leave within the time limits established by law.

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.

At the same time, one should not forget that if a woman goes on maternity leave later than the date indicated on the sick leave, then its period automatically becomes shorter, which entails a decrease in the legal benefit for this circumstance.

Despite the fact that control over compliance with the right to leave under the law falls on the shoulders of the employer, employees, due to any circumstances, may violate the implementation of this obligation by the management of the enterprise. In this case, the problem may have several solutions, however, all of them will require bilateral negotiations and any kind of agreement.

Question: The employee has not been on vacation for 5 years. The organization is currently downsizing its staff. Can an employee take all vacations? Should the organization pay him monetary compensation for holidays not used for 5 years?

Answer: It is prohibited not to provide annual paid leave for two consecutive years, as well as the failure to provide annual paid leave to employees under the age of eighteen and employees engaged in work with harmful and (or) dangerous working conditions (part 4 of article 124 of the Labor Code of the Russian Federation) . In exceptional cases, when the provision of leave to an employee in the current working year may adversely affect the normal course of the organization's work, it is allowed, with the consent of the employee, to transfer the leave to the next working year. At the same time, leave must be used no later than 12 months after the end of the working year for which it is granted (part 3 of article 124 of the Labor Code of the Russian Federation). This rule does not apply to the last two of these categories of workers.

Since this violation takes place, the right to use paid holidays is reserved for the employee, regardless of the number of such holidays, their duration, and the reasons why the holiday was not used, provided that he has the necessary length of service to provide all these holidays (Articles 121, 122 of the Labor Code of the Russian Federation).

Annual paid leave is provided to the employee in accordance with the vacation schedule approved by the employer (Article 123 of the Labor Code of the Russian Federation). Leave not used in previous years may also be included in the vacation schedule for the next calendar year. If unused vacations are not included in the vacation schedule, they can be granted within the time limits specified by the agreement between the employee and the employer.

Upon dismissal, the employee is paid monetary compensation for all unused vacations (Articles 126, 127 of the Labor Code of the Russian Federation). At the same time, labor legislation does not contain restrictions on the number of such holidays, as well as on their duration.

At the same time, holidays can be granted to an employee with subsequent dismissal, if the employer does not object to this (part 2 of article 127 of the Labor Code of the Russian Federation). If the employer does not agree to provide the employee with leave followed by dismissal, upon dismissal, the employee must be paid monetary compensation for all unused holidays, in this case for 5 years.

On the contrary, this period is necessary for the employee to exercise his right to leave in the near future so that the provision of leave is not postponed indefinitely. Violation of the terms for granting leave is the basis for bringing the employer to administrative responsibility under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation. The fact that employees retain the right to use all due annual paid holidays that were not used for any reason in previous working periods is also noted in the letter of Rostrud dated 03/01/2007 N 473-6-0. Do not lose employees have the right to receive unused vacation days even after the ILO Convention No. 132 on paid holidays (hereinafter referred to as Convention No. 132), ratified by Federal Law No. 139-FZ of 01.07.2010, comes into force. According to paragraph 1 of Art.

If the employee has not been on vacation for more than two years

If the employee does not bring a work book (for example, if this work is the first for the employee), then the employer must issue a work book. The entire responsibility for issuing a new work book lies with the employer. The personnel department, personnel department, accounting department or the director do not have the right to demand a new empty work book from the employee if it is not there.

This is due to the fact that the work book is a document of strict accountability, which means that it may simply not be sold to an individual. For more information on how to get a job, read a separate article. You can not bring a work book and not draw it up in case of part-time work.

Who should purchase a work book Everything happens for the first time. Someone gets a job for the first time and then the future employee does not yet have a work book.

The employee has not been on vacation for three years

If old vacations are planned in the current schedule In order to reflect the fact of replacement in the vacation schedule, it is necessary to record that part of the annual vacation (indicating the number of days) was replaced by monetary compensation. You should also indicate the details of the order to replace vacation with compensation. Example An employee of CJSC RusInvest A.S. Linnik was given an irregular working day.
In this regard, he has the right to an annual paid leave of 31 calendar days (28 calendar days of annual leave + 3 calendar days of additional leave) (Article 119 of the Labor Code of the Russian Federation). The employee has not been on vacation for three years. When planning vacations for 2013, he expressed a desire to take vacations for 2008 completely, and to receive compensation for 2009 and 2010.

Unused vacation

The vacation schedule is obligatory for both the employer and the employee. In exceptional cases, it is allowed to transfer the vacation to the next working year with the consent of the employee, when the provision of vacation in the current working year may adversely affect the normal course of work of the organization, individual entrepreneur. At the same time, leave must be used no later than 12 months after the end of the working year for which it is granted. It is prohibited not to grant annual paid leave for two consecutive years, as well as the failure to grant annual paid leave to employees under the age of eighteen and employees employed in work with harmful and (or) dangerous working conditions (parts three and four of Art.

What should an accountant and personnel officer do if the employee does not want to go on vacation

In turn, the Federal Service for Labor and Employment in a letter dated September 9, 2010 No. 2725-6-1 noted that the entry into force of certain provisions of the convention may require appropriate changes to the Labor Code of the Russian Federation. However, in connection with the ratification of the convention and its entry into force in the Labor Code of the Russian Federation and in particular Art. 127 of the Labor Code of the Russian Federation, no changes were made. In this connection, it was concluded that the relevant norms of the Labor Code of the Russian Federation continue to operate, unused vacation does not burn out, and upon dismissal, compensation is paid for all unused vacations.
What will the court say? Time has passed, and the practice of applying the provisions of the law under consideration by us has appeared. In particular, court decisions appeared, based on which part of the unused vacation burns out and is not subject to compensation upon dismissal of an employee.

When drawing up a schedule, an additional column is added to form No. T-7 (it can be called, for example, “Period for which leave is granted”). It indicates all the periods for which the employee has unused vacations. And opposite each period put down the number of calendar days.

Important

If one of the employees with unused vacations decided to take two or more vacations in the next year, then two or more vacations should be planned for him in the schedule. In order not to get confused, we recommend that in the vacation schedule the past periods for which vacation is granted in the current year be indicated in chronological order. If the vacation for previous working years is not planned in the schedule for the current year By agreement of the parties to the employment contract, old vacations can be granted to the employee outside the schedule.

Didn't use vacation for two years

Leave for the previous period is granted on the basis of the employee's application and the order of the director. Compensation instead of unused vacations Is it possible to replace unused vacations with monetary compensation? The answer to this question depends on whether the employee is entitled to additional leave or not. Recall that, for example, workers employed in hazardous industries, workers with irregular working hours, employees working in the regions of the Far North (Part 1 of Art.
1 st. 116 of the Labor Code of the Russian Federation). How to find out that an employee has used accumulated vacation Information about unscheduled vacation for past working years, as well as about planned vacation for the current year, is reflected in section VIII "Vacation" of the employee's personal card (form No. T-2) or section IX "Vacation" of the personal cards of a state (municipal) employee (form No. T-2GS (MS)).
For example, an employee was not on vacation in 2005 (28 calendar days), 2006 (28 calendar days), and 2008 (28 calendar days). This means that in 2013 he can immediately go on vacation for 112 calendar days (28 calendar days × 4 years). In what sequence to take vacation As a rule, employees do not use the accumulated vacation immediately, but gradually.

Let's look at the order of using vacations for past years. First of all - vacation for the current year. So, in the current period, the employee must first use the vacation for the current year. This follows from the norm of Article 122 of the Labor Code: "Paid leave must be granted to the employee annually."

But all other unused vacations can be partially or completely taken off in agreement with the employer in the sequence that they agree on. For old holidays - any order.
With such data, the provisions of the Convention No. 132 of the International Labor Organization "On paid holidays" on the limitation period for claims for compensation for unused holidays when resolving this labor dispute were correctly applied by the court, since these norms of international law are an integral part of the national legal system of the Russian Federation. Thus, the court concluded that compensation for unused vacation could be paid for a period of time equal to 21 months (18+3) following the year for which the vacation was to be granted. A similar opinion was expressed in the Ruling of the Ulyanovsk Regional Court dated July 14, 2015.

No. 33-2923/2015. However, this position is not the only correct one; there are also other opinions and other judicial acts based on the following approach. Another point of view.
According to Art. 114 of the Labor Code of the Russian Federation, employees are granted annual leave while maintaining their place of work (position) and average earnings. At the same time, paid leave must be provided to the employee annually. Annual paid leave must be extended or postponed for another period determined by the employer, taking into account the wishes of the employee, in the following cases: 1) temporary disability of the employee; 2) performance by the employee during the annual paid leave of state duties, if the labor legislation provides for exemption from work for this; 3) in other cases provided for by labor legislation, local regulations.
The responsibility for maintaining labor lies with the employer, which means that it is he who must provide the personnel department with the necessary forms (in this case, inserts in the work book). An insert with a work book A copy of the work book A work book, or rather a copy of it, may be required even if no changes are made to the work book itself. For example, a copy of the work is needed when obtaining a mortgage, when applying for a visa or when obtaining a passport.
In such a situation, the employee contacts the personnel department with a request to make a copy of the work book. Each copy is stamped, and at the end of the copy itself, information is indicated that the employee is currently working in this organization. Work without a work book In some situations, work without a work book is allowed.

All your employees working under employment contracts, the company is obliged to provide leave, and regardless of their desire, but within the agreed time frame, in accordance with articles 114 and 123 of the Labor Code. When and how long workers should “walk”, experts from Berator told specifically for Calculation

We all know that there are workaholics who do not want to go on vacation under any circumstances. And in our time, many are trying to save, save money and deny themselves the right to rest. There are cases when employees do not take vacation for several, or even ten years. Quite reasonably, the question arises: what to do with non-holiday vacations and do they burn out?

The answer to this question is given by the Labor Code and Convention No. 132 of the International Labor Organization “On paid holidays”. Russia ratified the Convention by the Law of July 1, 2010 No. 139-FZ, the Convention entered into force on September 6, 2011.

The norms of the Labor Code and the Convention on the duration of leave and its division into parts are fully consistent with each other. According to Article 3 of the Convention, the duration cannot be less than three weeks, according to Article 115 of the Labor Code, vacation is 28 calendar days.

According to Article 8 of the Convention, vacation can be divided into parts so that one part of the vacation is at least two continuous working weeks, according to Article 125 of the Labor Code - one part of the vacation must be at least 14 calendar days. The norms on the “depth” of the period for which leave is granted are also consistent with each other.

According to Article 9 of the Convention, the uninterrupted part of the leave is granted and used no later than within one year, and the balance of the annual paid leave no later than within 18 months after the end of the year for which the leave is granted.

The Labor Code stipulates that in some cases, leave must be used no later than 12 months after the end of the working year for which it is granted. It is prohibited not to provide an employee with annual paid leave for two consecutive years.

note

Holidays can only be used for the last two years. In other words, the employer is forbidden not to grant leave for more than two working years. Failure to comply with this procedure is regarded as a violation of labor legislation, for which a fine is provided.

Article 127 of the Labor Code establishes that upon dismissal, the employee is paid monetary compensation for all unused vacation days. Article 11 of the Convention states that if an employee has unused vacation days upon dismissal, the employer is obliged to compensate them.

Thus, you can only use vacation for the last two years. In other words, the employer is forbidden not to grant leave for more than two working years. Failure to comply with this procedure is regarded as a violation of labor legislation, for which a fine is provided. If a company fails to grant an employee leave for two consecutive years, it can be fined.

But the employee will lose only the time provided by the legislation for rest. "Burns" only the time allotted for rest and not used for a period exceeding two years.

But the employee will still receive money for unused vacation, including for a period earlier than two years, as compensation for unused vacation upon dismissal. And for the company, this is most often an unplanned additional expense for payment.

Calculate compensation

Cash compensation for unused vacation pay:

• upon dismissal, in accordance with Article 127 of the Labor Code;
• at the written request of the employee for that part of the vacation that exceeds 28 calendar days, in accordance with Article 126 of the Labor Code.

Pregnant women and employees under the age of 18 cannot replace the basic annual paid leave with monetary compensation. The company is not entitled to pay money instead of additional paid leave to those employees who are engaged in hazardous or hazardous work.

One of the most frequently asked questions about vacations - does unused vacation expire or not?

In 2020, an employee can use all the holidays that he has accumulated in previous periods from this employer (Article 124 of the Labor Code of the Russian Federation). Including can add them to the vacation for the current working year. In other words, if an employee, for example, has 13 calendar days of vacation left unused since the last working year and they are transferred to the next working year, he is not obliged to first take vacation only for these 13 days, and only then separately vacation for the current year.

If the employee decides to quit and on the day of dismissal he will be credited with non-vacation leave (it is also called non-vacation leave), then the employee can (Article 127 of the Labor Code of the Russian Federation):

• or write an application for leave with subsequent dismissal (provided that he is not fired for guilty actions);
• or get .

Unused vacations in the vacation schedule

As for vacation days for previous working years, they can be provided to the employee:

• in accordance with the holiday schedule. In this case, they must be added to the total number of vacation days of the employee and also reflected in column 5;
• at the request of the employee. Then the specific vacation period is determined in agreement with the employer.

Such an application will be no different from a regular application for annual paid leave. It does not need to specify that we are talking about vacation for the previous working year.

Statement dated 01/27/2020

Leading engineer (signature) Grekov A.K.

Why unused vacation is unprofitable for the employer

The answer to the question - does the vacation for the past years burn out in 2020, we already know - does not burn out. Naturally, for those employees who, for some reason, rarely go on vacation, the total number of unused vacation days can be quite large.

This state of affairs is often not liked by employers. And there are 2 reasons for this. Firstly, if the labor inspectorate comes to the organization, the inspectors will definitely have questions about why employees cannot fully exercise their right to rest. And secondly, the more vacations an employee has accumulated, the greater the amount of compensation he will have to pay upon dismissal (Article 127 of the Labor Code of the Russian Federation).

In this regard, employers often offer their employees different ways to "get rid" of unused vacations over the past years. Let's see what options are possible and what are their pros and cons.

The employer "expels" on vacation

The simplest and most acceptable option for all parties is if the employee still takes his vacation off, at one time or in parts (Article 125 of the Labor Code of the Russian Federation). Accordingly, he will be able to rest and receive vacation pay for this period.

The situation is worse when an employee is asked to write several applications for short vacations that fall only on weekends - traditionally Saturday and Sunday. The employer, recommending this option, usually reminds that the employee will receive more money. After all, for each such day off, the employee will be paid vacation pay. At the same time, in such a situation, the vacation days of the employee really burn out. Because he wouldn’t work on the weekend anyway, and he could take a vacation later, and at the same time get not only the same vacation pay, but also fully relax. It is for this reason that such "weekend" vacations are provided by the Ministry of Labor.

The most unprofitable option for an employee is to take a vacation and at the same time continue to work, as if there were no vacation. In such a situation, the employee is paid vacation pay for the days of work, and he simply loses the money earned. After all, officially during this period he does not work. And again, there is no need to talk about any rest here.