Can a vacation burn if not walked off. Burning holiday

The reasons why the employee does not use vacation in the next year may be different: production need, desire of the employee.

According to the general rule established by article 122 of the Labor Code, the employer is obliged to provide paid leave to employees annually. In exceptional cases, leave can be carried over to the next working year, but this requires the simultaneous availability of conditions:

The provision of leave to the employee in the current working year may adversely affect the normal course of work of the organization;

The employee agrees to the transfer of leave (part three of article 124 of the Labor Code of the Russian Federation).

Failure to provide an employee with annual leave for two consecutive years is prohibited by labor law.

So, if due to production needs (with the consent of the employee) the employee is not granted leave in the current working year, the employee must “walk off” the leave within 12 months after the end of the working year.

For example, the employee's working year is from June 1, 2013 to May 31, 2014. Due to the production need for this year, the employee was not granted leave. Employees must use leave for this working year until May 31, 2015.

Making holiday transfer to the next year

So, the employer, in connection with the production need, decided to postpone the employee's leave for the next year. The employee agrees with this decision.

Note that the labor legislation does not oblige to issue an employee’s consent to transfer the leave in writing. However, in order to avoid conflict situations, the personnel officer may ask the employee to confirm in writing his agreement to transfer the vacation to the next year.

Upon receiving such consent, the employer issues an order to postpone the employee's leave to the next working year. If the vacation is carried over to the next calendar year, the new vacation date will need to be reflected in the vacation schedule, which will be drawn up later, for the next calendar year.

Note that, according to Rostrud, you can take into account unused holidays in the vacation schedule for the next calendar year. Or ask the employee to write an application for the provision of unused vacation in the current year.

If you have accumulated a lot of unused holidays

Situations are quite common when workers accumulate vacation over several years. Accordingly, the question arises before the employer: what to do with the accumulated vacations?

Labor legislation gives the only answer to this question: in order to avoid bringing to administrative responsibility for violation of labor legislation, employees must provide all the accumulated unused vacation days.

Please note that the employer is obliged to provide the employee with all unused holidays, and upon dismissal, to pay compensation for all “non-scheduled” vacation days. Regardless of how long these holidays are accumulated - they do not burn.

Compensation for unused vacation

Many employees mistakenly believe that if they do not take advantage of the vacation in the current year, the employer is obliged to pay them compensation for unused vacation. A personnel employee must explain to employees: compensation for unused holidays is paid only upon dismissal (article 127 of the Labor Code of the Russian Federation). If the employment relationship between the employee and the employer does not cease, compensation cannot be paid for “non-scheduled” vacations as a general rule.

The employer may only pay compensation for unused vacation if the duration of the employee's vacation exceeds 28 calendar days. Moreover, compensation can only be paid for days that exceed standard holidays.

Please note that the employer is not entitled to independently decide on the replacement of vacation days with monetary compensation. He can do this only if the employee applies in writing for monetary compensation instead of vacation days.

Example. An employee has an irregular working day and is granted additional leave of three calendar days. The total duration of an employee's annual leave is 31 calendar days. Upon written application by the employee, the employer may replace three days of vacation with monetary compensation.

Note that in order to replace the vacation with monetary compensation, unused annual leave is not cumulative. In other words, compensation can only be paid for vacation days that exceed 28 calendar days of each annual vacation.

For example, the duration of an employee’s vacation is 28 calendar days. The employee did not use vacation for two years, and he accumulated 56 days of vacation. In this situation, vacation cannot be replaced with monetary compensation, since vacation duration for each year does not exceed 28 calendar days.

Keep in mind that for certain categories of workers, the replacement of leave with monetary compensation is generally prohibited. Regardless of the duration of the main and additional vacation, you can not replace it with compensation:

Pregnant women

Minor employees.

And workers employed in work with harmful or hazardous working conditions are prohibited from paying compensation in exchange for additional leave (part three of article 126 of the Labor Code of the Russian Federation).

When a worker has not used vacation for a long time and providing a rather long rest is impossible from a practical point of view, many employers come out of this situation as follows. The employee is offered to terminate the employment contract. At the same time, he is paid compensation for all unused holidays and the next day after dismissal, the employee is again hired.

We note that despite the fact that in this situation there are no violations of labor legislation, for applying this method it is necessary that the employee and employer have a trusting relationship.

Responsibility for not providing vacation

For failure to provide annual paid leave, the employer may be held administratively liable on the basis of Article 5.27 of the Code of Administrative Offenses of the Russian Federation. For officials punishment in the form of a warning or a fine of 1,000 to 5,000 rubles is envisaged. The size of the fine for the organization is from 30,000 to 50,000 rubles.

Keep in mind that in the event that prolonged work without vacation is not an isolated case in the organization, but the accepted practice, the labor inspector has the right to consider not providing vacation to each employee as a separate violation. Accordingly, the amount of the fine will depend on how many employees did not use the leave in time (Decree of the Supreme Court of the Russian Federation of August 15, 2014 No. 60-AD14-11).

State Labor Inspectorate

It often happens that the employer refuses to let employees in. This phenomenon has different reasons, both respectful and not very good. Because so many are concerned about the topic associated with unused vacations. It is worth telling in more detail about what exactly employees can count on.

The Labor Code says that anyone can count on receiving 28 days of vacation throughout the calendar year. This time of rest is called the main. But for some regions, professions, extra time is introduced.

According to the law, the standard situation is when vacation is used throughout the year. If necessary, this time is divided into parts. The main thing is that at least one of them should be at least two weeks old. You must use the rest time no later than one year after the start of the period for which the vacation is accrued.

For the transfer and separation into parts, good reasons are needed. Without them, the employer has the right to refuse to amend the standard scheme.

When not a single day burns that remains unused. This year, you can take advantage of the remaining free days, which were formed for a maximum of 18 months of the previous period.

Compensation for vacations not previously used

Days that have not been used do not disappear. But the law prohibits them from accumulating more than necessary. The Code also establishes that the manager cannot refuse to provide time for rest. This can lead to a fine of at least 50 thousand rubles.

Previously, workers had the right to refuse leave, and in return to receive monetary compensation. Since 2011, our country has become a member of the International Convention, in which this issue is regulated somewhat differently. Now it is impossible to replace days of rest with monetary compensation. Holidays in general cannot be delayed for more than 24 months. And the leadership ceased to be profitable so that vacation days were accumulated. This is due to several reasons:

The labor inspectorate may ask more questions when the check is in progress.
The more such days accumulate, the more compensation an employee can expect.

But employers often still try to reduce the rest time. For this purpose, several tricks are used:

Vacation is given, but issued from Friday. That is, the lawful days are added to the days of rest.
An employee is not allowed to rest at all, but is asked to write a statement, for example, on weekends.
Vacation is issued, but in fact the employee continues to fulfill his duties.

None of these options can be called effective. The leaders convince everyone that the other side can receive the main salary at the same time as vacation pay in such situations, but in any case, the legal right to rest is lost. There are several legal ways to spend time that has not yet been used.

If an employee leaves, but still has a vacation, there is a right to take several actions:

Drawing up a vacation application. Then the dismissal occurs after it ends. There is no need to wait and spend two weeks working out. But it turns out if there are 14 days of rest or more.
Receiving monetary compensation for the time that is left over.

Pregnant women can follow the same rules as everyone else. They cannot receive compensation in the usual situation, and the manager has no right to deprive such employees of the right to go on vacation altogether.

Unused days can be added to or to parental leave. Registration of rest in advance is allowed.

It doesn’t matter how the rest takes shape. A pregnant woman should get vacation pay anyway. Such payments are sometimes perceived as compensation by those who have not received an accounting education.

We draw up an application for unused days

Employees are required to draw up to be allowed to use vacation days from a previous period. Such a document has few differences from standard papers issued upon provision of regular vacations:

What difficulties can arise with compensations?

Some employees do not seek to issue the next vacation according to the usual rules. They do not know how much legislation has changed lately. This is especially true for those who live in difficult financial situations. Such people often rely on payments from their superiors, but in the end are left without any help whatsoever.

And managers take advantage of a similar situation, trying to save on costs. It must be remembered that the law allows you to postpone the rest time no later than 18 months from the moment the right to rest appeared. And then the transfer is possible only if there are good reasons. If dismissal occurs by the end of this period, then it is impossible to obtain compensation even through a court.

The legislation generally establishes that the court must be appealed to the court three months after it becomes known about the violation of rights. This rule is rarely observed by those who continue to work. Therefore, when dismissed, they are faced with a refusal. Turning to the court, they find out that the statute of limitations has expired.

How to reflect holidays in the schedule?

Usually completed using form T-7. The head, for example, for the next period must approve him no later than December 17, 2017. The number of rest days due for the next working year is indicated in the fifth column of the document. Here they write information on both the main and additional holidays. It does not matter if they are provided for by Russian law in general or only by regional acts.

There are other points to consider when filling out the schedule:

Strikethrough entries or other types of corrections are not allowed.
If you need to make changes, then this is done only after prior coordination with the one who directly controls this or that employee. The head of the company must apply for a so-called permit visa.
The graph must reflect all the information. Including in situations where the employee reschedules his vacation more than once.

Unused vacation days can be provided in two ways in connection with the design of this document:

In accordance with the standard schedule. Then the unused time is added to the total specified in column 5.
Based on a statement from an employee, after agreement with a second party.

The main thing is that the employee tries to avoid when completing the document. Well, if at hand there is a ready-made sample of the document, which is made in accordance with standard requirements. And the leader himself must ensure that the right to rest is necessarily realized. Otherwise, inspection inspections have additional questions. Which, in turn, leads to additional checks and other troubles.

Write your question in the form below

Do unused vacation days burn out?

First of all, in this situation, you need to understand whether unused vacation days can burn. The Labor Code establishes that each worker on the territory of our country is entitled to leave in the amount of 28 calendar days throughout the year. This is the so-called main vacation. There is also the concept of extra leave for some professions and regions.

By law, leave should be used throughout the year. If desired, it can be divided into parts, the main thing is that at least one of them should not be less than fourteen calendar days. If for some reason you can’t take a vacation, it should be moved to another period. But it must be used no later than 12 months after the end of the period for which it is issued.

At the same time, there must be significant reasons for such a transfer, which are fixed in the Labor Code.

All reasons for the transfer of leave can be divided into those initiated by the employee and those that arise on the initiative of the employer. For the convenience of their consideration, they are shown in the table below.

Employee-initiated Reasons	Reasons initiated by the employer
Personal respectful circumstances. How respectful they are is decided by management.	Emergency work has appeared that cannot be done by anyone except an employee who is going on vacation
Disease	Production Technology Update
	Business trip that cannot be rescheduled
	Company reorganization
	Temporary incapacity for work of the head, if the employee is assigned his duties in this case
	Unscheduled inspection of the organization by state bodies and higher divisions, if a vacationer is required to participate in them

In all the above cases, vacation is transferred to another period. Moreover, not a single unused day is burned. In the current year you can use vacation days that have remained unregulated during the previous 18 months.

Compensation for unused vacation

We found out that unused vacation days do not disappear anywhere and do not burn out. However, they cannot be accumulated in accordance with the law. The Labor Code establishes that the employer has no right to refuse to grant the employee leave. Such a violation threatens a fine of 50 thousand rubles.

Previously, the employee had the right not to go on vacation, but to receive compensation in cash. Since 2011, Russia has acceded to the International Convention, which governs the provision of leave. Now it’s impossible to get compensation instead of the main days. In addition, leave cannot be delayed for more than two years.

It is unprofitable for the company management that workers accumulate unused vacation days. There are several explanations for this:

a check by the labor inspectorate may cause problems;
there are options when the employee will have to pay compensation, the more such days accumulate, the more expenses the company will have.

In practice, many employers want to reduce the number of vacation days due to the employee, not allowing him to rest. To this end, they use several tricks:

giving the employee a vacation, they take it out on Friday (that is, a legal weekend is added to the number of vacation days);
not letting the employee go on a well-deserved rest, he is asked to write an application for a vacation on weekends;
the employee is issued a vacation, but in fact he continues to work.

All of these options can not be called effective. On the one hand, management convinces employees that in these cases they can receive two payments at the same time - salary and vacation pay. On the other hand, by agreeing to such offers, the employee loses the legal right to rest. However, there are several legal ways to spend all unused days of vacation in a particular organization.

Compensation to an employee upon dismissal

If an employee decides to quit, if he has unused vacation, he has the right:

Write a vacation application followed by dismissal. At the same time, he will not have to work out the prescribed two weeks if unused vacation exceeds 14 days. Or reduce the working time by the available number of unused days of rest. Read also the article: → “”.
Get cash compensation for all days of unused vacation.

Calculation of the number of unused vacation days and an example of their use when leaving

To calculate the number of unused days of vacation is made according to a certain algorithm, which is presented in the table

Step number	Calculated indicator	Features of the calculation
1	The number of months worked in the organization	If the number of days of an incomplete month is less than fifteen, they should be discarded. If more than 15 - one month should be added.
2	How many days of vacation are due to the employee for the hours worked.	The number of months received as a result of the calculation at the first stage is multiplied by the coefficient of the number of vacation days relying on one month (28/12)
3	Determines how many days an employee spent on vacation	Calculated on the basis of a vacation order
4	The number of days of unused vacation	Defined as the difference between the results of paragraph 2 and 3

Assume that an employee has been employed by the company since July 14, 2014. From February 6, 2017, he quits of his own free will. During the period of work, he was on vacation 3 times for 14 days. Calculating the seniority in this company, we get that the employee worked for 30 months and 23 days. The number of days of an incomplete month exceeds 15, so we add a month to the experience, we get 31.

For 31 months, the following number of vacation days is due:

28/12 * 31 \u003d 72.33 days

It was walked away: 14 * 3 \u003d 42 days
Remained unused 72.33 - 42 \u003d 30.33 days

If an employee writes an application for leave with subsequent dismissal, they will be paid vacation pay in 14 days, and compensation for the remaining 16.33.

Compensation for unused maternity leave

There are no fundamental differences with respect to pregnant employees: it is impossible to receive compensation for unused vacation days. However, the employer does not have to deprive them of the right to go on vacation. In this regard, there are several options for processing unused vacation, which are presented in the table.

Option No.	Name	Description
1	Adding unused sick days	A woman leaves for maternity leave earlier by writing a vacation application for an unused number of days
2	Extend parental leave	A woman leaves the decree later for as many days as she did not take time off on her holidays
3	Getting vacation upfront	Some companies allow women to use vacations in advance for periods when she will be on maternity leave and for this number of days earlier to go on sick leave.

Vacation Holidays Application

To use vacation days left over from previous periods, the employee must write a statement. In fact, it does not differ from the standard application for the next vacation and is compiled according to the following rules:

The application is made out on a sheet of A4 format.
Traditionally, such documents are written by hand. Some organizations allow the execution of text on a computer with subsequent printing and affixing a signature.
The hat is written in about the last third of the sheet. It indicates the position of the person to whom the application is sent, the name of the organization, the surname and initials of the addressee. Next, write a statement from someone in the form of a phrase: “from the position, surname and initials in the genitive case”.
The name of the document (statement) is indicated with a capital letter with a red line. At the end, the point is not set.
Again, a clear request is drawn up from the red line - I ask you to provide a vacation from such a date lasting for so many days. Some organizations are additionally asked to indicate for what period the requested vacation is due. Therefore, it is best to clarify this point in accounting or human resources.
At the bottom is the signature of the employee and its transcript, as well as the date of the application. Read also the article: → “”.

In principle, writing a statement is not complicated. But it is better to always clarify which text should be written in it, because in some rules it is clearly established.

Difficulties in paying compensation for unused vacation

Until now, many employees, not knowing that the legislation on holidays has changed, do not seek to go on another vacation. This is especially true for those who have a rather difficult financial situation. Such people expect the employer to pay them compensation. As a result, workers are often left with nothing.

Judicial practice shows that often employers take advantage of employee ignorance to save money. The fact is that the law establishes the right to transfer vacation no further than 18 months and only on the basis of good reasons. If the dismissal occurs after this period, even the court in some cases does not help to obtain compensation.

It is legally established that an employee whose rights are violated must file a corresponding application with the court no later than three months. Naturally, employees who continue to work in the company do this extremely rarely. As a result, upon dismissal, they are faced with a refusal to pay the compensation due to them. Turning to the court, they learn that the statute of limitations has long expired, and it is unlikely that anything will be done.

FAQ

The topic of unused vacations is quite extensive and complex. This leads to a huge number of questions. We will try to answer the most common ones further.

Legislatively established that the employer must provide leave to their employees. Therefore, without dismissal, receiving monetary compensation for the bulk of it will not work. Another thing is extra vacation days. They can be replaced by a cash payment at the request of the employee. However, for several categories of citizens such a right is not provided, they must rest in full. These include:

workers under the age of eighteen;
pregnant women;
employees engaged in hazardous work.

Question number 2. The employee is accepted on condition of a trial period of three months. However, after two, he quit. Is he entitled to compensation for unused vacation?

The law does not establish any specifics for granting leave to employees who are on probation. Therefore, in the event of the dismissal of such an employee (regardless of his own free will or due to non-compliance with the requirements of the company), he is supposed to pay appropriate compensation.

Thus, the procedure for providing unused vacation days is clearly regulated in Russian law. The employee must clearly understand his rights, so as not to be with anything. In case of violation of the rights of the employer, the court should apply within three months, otherwise it will be impossible to change the situation.

For past working periods. What is the procedure for granting unused vacation? Is it possible to transfer unused vacation if it is included in? How long can an employee go on annual leave again?

According to the first part of Art. 122 of the Labor Code of the Russian Federation paid leave should be granted to the employee annually. At the same time, the working year should be understood as 12 months of the employee’s work with the given employer, counting from the day he was hired (paragraph 1 of the Rules on regular and additional holidays approved by the USSR tubing of 04.30.1930, letter of Rostrud of 08.12.2008 N 2742-6 -one).

The right to use the leave for the first year of work arises for the employee after six months of his continuous work with this employer (part two of article 122 of the Labor Code of the Russian Federation). * (1) Holidays for the second and subsequent years of work may be granted at any time of the working year ( part four of article 122 of the Labor Code of the Russian Federation).

It should be noted that the priority of paid leave is determined annually in accordance with the vacation schedule approved by the employer taking into account the opinion of the elected body of the primary trade union organization no later than 2 weeks before the calendar year (part one of article 123 of the Labor Code of the Russian Federation). Moreover, the vacation schedule drawn up and approved by the employer, by virtue of part two of Art. 123 of the Labor Code of the Russian Federation, is mandatory both for the employer and for the employee.

In accordance with part three of Article 124 of the Labor Code of the Russian Federation in exceptional cases, when the granting of leave to an employee in the current working year may adversely affect the normal course of work of the organization, transfer of leave to the next working year is allowed with the consent of the employee. In this case, leave must be used no later than 12 months after the end of the working year for which it is granted.

Part Four of Art. 124 of the Labor Code of the Russian Federation establishes a direct prohibition on not providing an employee with annual paid leave for two consecutive years. Violation of this prohibition may entail the administrative liability of the employer under Art. 5.27 Administrative Code of the Russian Federation.

However, the violation by the employer of the rules governing the timing of the provision of annual paid leave does not deprive the employee of the right to such leave, as this is not provided for by law.

As explained by Rostrud, for various reasons, workers have unused annual leave for previous working years, but they retain the right to use all relying annual paid leaves. Holidays for previous working periods can be granted either as part of the vacation schedule, or by agreement between the employee and the employer. At the same time, the labor legislation does not contain provisions providing for the use of holidays for working periods in chronological order (letters dated 01.03.2007 N 473-6-0, dated 08.06.2007 N 1921-6).

In other words, if an employee was not granted annual leave for past working periods, he may first be granted leave for the current working period, and then for previous periods. However, the law does not prohibit giving an employee several annual leaves in a row without going to work between them.

In our opinion, the rules on the transfer of annual paid leave also apply to annual paid leave for past working periods. However, in this case, there is a risk of violation of the ban on non-provision of leave for two consecutive years, the responsibility for such violation lies with the employer.

Answer prepared by:
Expert of Legal Consulting Service GARANT
Naumchik Ivan

Quality control response:
GARANT Legal Consulting Service Reviewer
Komarova Victoria

The material was prepared on the basis of an individual written consultation provided as part of the Legal Consulting service.

* (1) By agreement of the parties, paid leave to the employee may be granted before the expiration of six months. Cases when paid leave at the request of the employee must be granted before the expiration of six months of continuous work are listed in part three of Article 122 Labor Code of the Russian Federation.

01.08.2017

The company is obliged to provide holidays to all your employees who work under employment contracts, moreover, regardless of their desire, but at an agreed time, in accordance with Articles 114 and 123 of the Labor Code. When and how much workers should “walk”, “Beratora” experts specifically told “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 workers do not take vacations for several, or even a dozen years. The question quite naturally arises: what to do with non-leaved vacations and whether 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 Leave. Russia ratified the Convention by Law No. 139-FZ of July 1, 2010; 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 breakdown into parts are fully consistent with each other. According to article 3 of the Convention, the duration can not 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 the vacation is granted are consistent with each other.

Under article 9 of the Convention, a continuous 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 to not give the employee annual paid leave for two consecutive years.

note

You can only use vacation time for the last two years. In other words, it is forbidden for the employer not to provide leave for more than two working years. Failure to comply with this procedure is regarded as a violation of labor law, for which a fine is provided.

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

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

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

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

Calculate compensation

Monetary compensation for unused vacation pay:

upon dismissal, in accordance with article 127 of the Labor Code;
upon 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 workers under the age of 18 cannot be replaced with cash compensation for the main annual paid leave. The company does not have the right to pay money instead of additional paid leave to those employees who are engaged in hazardous or hazardous work.

The amount of compensation for unused vacation is calculated as follows.

Compensation formula for unused vacation

Moreover, the average daily earnings are calculated in the same way as when paying for "ordinary" vacation.

Having determined the average daily earnings, you need to find out how many days of vacation the employee has to spend for the worked period. As a general rule, an employee is entitled to 28 days of vacation each year. If the employee worked less than this period, then the number of days of vacation is determined in proportion to the months worked. For one full worked month, 2.33 days of vacation are laid (28 days: 12 months).

The company is obliged to pay compensation on the day of dismissal. This is required by article 140 of the Labor Code. When leaving, the employee may decide not to receive monetary compensation, but to catch the unused part of the vacation.

Then (at the written request of the employee) you will first grant him unused leave, and then dismiss him (this does not apply to cases when a person is dismissed for guilty acts). In this case, the day of dismissal will be considered the last day of vacation.