When vacation expires. The legality of the transfer of unused vacations for previous years to the current period

Every year we go on legal paid leave. But every time we have a lot of questions related to the long-awaited vacation. When should vacation pay be transferred, do old vacations expire, is it possible to receive compensation for unused vacation? For clarification, the portal turned to the State Labor Inspectorate in the Altai Territory. Read the answers in our regular section "Question-Answer".

How much do you need to work to go on vacation?

According to the Labor Code of the Russian Federation, a person can count on vacation after he has worked without interruption for at least six months. But there are categories of citizens to whom the employer is obliged to provide leave earlier if the employee requires it. It's about:

Employees under the age of 18;

Women - before maternity leave or immediately after it;

Employees who have adopted a child under the age of three months;

A man while his wife is on maternity leave;

One of the parents (guardian, guardian, foster parent) who is raising a disabled child under the age of 18.

An employee who has worked full year. Such leave must be provided to the employee annually in accordance with the vacation schedule established by the employer. If the company does not maintain a vacation schedule, then the question of when exactly you can relax is decided by agreement between the employee and the employer.

Is it true that old vacations "burn out"?

No. Even if, for some reason, a vacation was not granted to an employee for several years, no “burning out” of vacations occurs. The employer must provide the employee with all unused vacations.

Can I replace vacation with cash compensation?

Only those employees whose vacation exceeds 28 days can replace part of the annual paid vacation with monetary compensation. This can be done by written application and if the employer does not object to it.

Pregnant women, employees under the age of 18 cannot count on replacing the annual basic paid and additional holidays with monetary compensation, and employees engaged in work with harmful and dangerous working conditions for work in appropriate conditions cannot count on annual additional paid leave.

“According to Article 127 of the Labor Code of the Russian Federation, upon dismissal, an employee is paid monetary compensation for all unused vacations. That is, compensation is paid for vacations accumulated over the entire period of work with a particular employer,” Elena Sukhonos, Acting Deputy of the State Labor Inspectorate in the Altai Territory, explained to the portal.

What to do if you are not allowed to go on vacation?

If the manager refuses to provide annual paid leave for any reason or does not provide this leave in due time, then the employee has the right to apply to the State Labor Inspectorate, as well as to the court.

The transfer of annual paid leave is possible only if the employee himself agrees to this. For example, its absence will adversely affect the work of the organization. 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. Failure to grant annual paid leave for two consecutive years is prohibited.

Does an employer have the right to split vacation into parts?

This issue is resolved by agreement between the employee and the employer. But, if you decide to break the annual leave into parts, one of them must be at least 14 calendar days. The rest of the vacation you can take at least one day or two weeks in a row.

It is important to note that it is better to decide how exactly you will rest in advance and indicate this in the vacation schedule. You can declare this even after drawing up a vacation schedule, whether or not to satisfy such an application is the right of the employer.

How long does an employer have to pay holiday pay?

Vacation pay must be paid to an employee no later than three days before the start of the vacation (part 9 of article 136 of the Labor Code of the Russian Federation). Note that two weeks before the vacation, the employer is obliged to notify the employee in writing about the upcoming vacation.

If the employee was not timely paid for the annual paid leave or the employee was warned about the start time of this leave later than two weeks before it began, then the employer, at the written request of the employee, is obliged to postpone the annual paid leave for another period agreed with the employee (Article 124 of the Labor Code of the Russian Federation).

The situation is such that for many years of service at work it happens that the employee does not have time to take the annual paid vacation. The holiday period begins to accumulate and eventually disappear. Many employees are concerned about the question: what to do if there is an unused vacation and whether the unused vacation for the past years burns out.

According to article 114 of the Labor Code of the Russian Federation, each employer must provide an annual paid vacation to his employee. It does not matter: the employee went on maternity leave or upon dismissal - unspent leave does not burn out. According to Legislative framework Every employee has the right to accumulate vacation pay. How does the process of restoring non-vacation leave take place, what is provided upon dismissal: unrealized day off or compensation, more in the article.

Can an unscheduled vacation burn out?

According to the Vacation Regulations, each employee is entitled to receive 28 days off annually. Holidays can be divided into periods if desired. The main thing is that the first part should be at least 14 days. The second part can be issued up to one day. If an employee constantly goes on annual leave, the situation consists in the fact that you just need to know how the application is drawn up. If the employee has a non-scheduled day off for the past years, the situation is more complicated.

First of all, the employer must notify his wards not only of the opportunity to go on annual holidays, but also give them a chance to choose a vacation period that suits them. The employee, in turn, must know on what date he has a day off this year. If for some reason he could not go on annual paid leave, the employer must act as a guarantor that the unused vacation will not disappear anywhere, but will accumulate in the vacation pay schedule.

A non-holiday long day off means that the worker could not arrange vacations on time and they automatically switched to next year. The situation when an official wants to postpone vacation pay must have good reasons. You can transfer the annual paid long day off:

• By decision of the employee, if the terms of the Employment Contract do not block such an opportunity;
• At the discretion of the employer.

The list of reasons why an employer may not let a ward go on vacation, according to Article 124 of the Labor Code of the Russian Federation, includes:

• Performing urgent work that only this specialist can do;
• Severe financial condition of the company: bankruptcy, crisis;
• Insufficient number of people who could replace the outgoing;
• For the period of rest, the employee performs part of the duties imposed on him to conduct production.

You need to know that even in such situations, unpaid vacation pay for the past years according to the Labor Code of the Russian Federation cannot burn out. Regardless of what position the ward has, whether he goes on maternity leave or decided to take vacation pay upon dismissal, according to the Law, it is possible to accumulate holidays and use them in the next working year.

Does unused vacation from previous years expire?

If for some reason the employee did not use all or part of the vacation, the vacation automatically rolls over to the next working year. Unused and unused vacation does not burn out. True, you can accumulate vacation pay for a short time.

You can transfer non-holiday vacations for previous years no later than one year. Other calendar periods will not be taken into account. Unused holidays can be issued in the current or next year. If this is not done, they will not burn out, but the employer will not be able to provide them to the worker. In such a situation, it is better to try to exchange non-holiday days for past years for compensation.

Upon dismissal, does unused vacation burn out or not in 2018?

Unused vacation or part of the vacation upon dismissal does not burn out, in accordance with the Labor Code of the Russian Federation. Upon dismissal, the employer, according to the vacation schedule, summarizes the entire non-vacation period. Therefore, the employee has the opportunity to take a well-deserved rest before leaving the position.

There are situations when a worker wants to receive monetary compensation instead of annual vacation pay. In this case, the employee should know that if the non-scheduled vacation does not burn out, this does not mean that his constant accumulation over the past years can be exchanged for monetary compensation. The law states: compensation is provided only to those categories of citizens who have holidays for more than 28 days and those who decide to terminate the employment contract. That is, people who have an extended vacation period and who want to quit can receive money.

In judicial practice, it happens that an employer can use fraudulent methods to provide an employee with a reduced amount of vacation pay. If such illegal actions are proved, according to the Law, the head is brought to administrative responsibility.

Does vacation expire when you go on maternity leave?

According to the Laws and the Labor Code of the Russian Federation, non-holiday rest before going on maternity leave does not burn out. A pregnant woman may:

• Write an application for the use of the non-holiday part of the vacation and go on maternity leave ahead of schedule;
• An employee can extend the maternity period due to unused days off.

Even if a pregnant woman did not have time to apply for a vacation before the decree. She can come out on the due weekend later. The accumulative part of vacation pay does not burn out even with a long stay on maternity leave.

Unused vacation - changes in the Labor Code of the Russian Federation from January 1, 2018

The rules for processing unused vacations have been changed since January 1, 2018. You need to know that if you write an application, unrealized vacation pay can be received before dismissal. In this case, the employer must pay compensation for the entire period of non-holiday holidays. Even if the term employment contract has ended, the annual holiday period does not expire, but is granted regardless of whether it goes beyond the conditions or not.

Notify the employer of the desire to take an annual day off no earlier than two weeks in advance. During this time, until the start of rest upon dismissal, the employee can change his mind and take back the application for leaving the workplace.

constitutional Court Russian Federation recognized that non-payment of compensation for unused vacation upon dismissal is illegal. Thus, the opinion that after a certain period of time unused vacation burns out is erroneous.

What is the essence of the dispute?

In 2010, the Russian Federation ratified Convention No. 132 of the International Labor Organization “On paid holidays” (hereinafter referred to as the Convention). provides that the balance of annual paid leave must be used no later than within eighteen months after the end of the year for which the leave is granted. In this regard, some employers have stopped paying employees compensation for unused leave upon dismissal if the leave has not been used for more than one and a half years after the end of the year for which it is granted. The workers went to court, and some courts sided with the employers.

Unused vacation expires after 21 months

The courts that sided with the employers in this dispute argued that unused vacation from previous years expires after 21 months. And workers after this period are not entitled to receive monetary compensation. What is the reason for such a period? It's simple:

• 18 months - the period of use of the annual paid leave after the end of the year for which the leave is granted, established by paragraph 1 of Article 9 of the Convention;
• 3 months - the period for applying for judicial protection, established by the first part of Article 392 of the Labor Code of the Russian Federation.

Thus, after 21 months after the end of the year for which annual paid leave is granted, the right to compensation for it is lost.

Unused vacation does not expire

The Constitutional Court of the Russian Federation, in Resolution No. 38-P of October 25, 2018, explained that upon dismissal, an employee must be compensated for all vacations that he did not take during his work. It does not matter how long the employee did not rest.

Part 1 of Article 127 of the Labor Code of the Russian Federation establishes that upon dismissal, an employee is paid monetary compensation for all unused vacations. The specified norm does not establish either the maximum number of vacation days unused by the dismissed employee, in return for which monetary compensation must be paid to him, nor its maximum amounts, nor any circumstances excluding the payment itself, nor other similar restrictions.

Position of the Constitutional Court of the Russian Federation:

The employee has the right to receive monetary compensation upon dismissal for all unused vacations. If this compensation was not paid by the employer directly upon dismissal, then the employee has the right to recover it in court, regardless of the time that has elapsed since the end of the working year for which this or that unused (fully or partially) vacation was to be granted, with the condition of applying to the court with the relevant requirements within the period established by law, calculated from the moment of termination of the employment contract.

Important
Compensation for unused vacation does not expire after a certain period of time.
An employee has the right to receive compensation for unused vacation upon dismissal, even if he did not take it ten years ago.

We must not forget about the deadlines for applying to the court. Remember that an employee has the right to apply to the court for resolution of an individual labor dispute on non-payment or incomplete payment of wages and other payments due to him within one year from the date of the established deadline for payment of these amounts, including in the event of non-payment or incomplete payment of wages and other payments due to the employee upon dismissal (part 2 of article 392 of the Labor Code of the Russian Federation).

Decree of the Constitutional Court of the Russian Federation of October 25, 2018 No. 38-P
“In the case of checking the constitutionality of part one of Article 127 and part one of Article 392 of the Labor Code of the Russian Federation in connection with complaints from citizens M.V. Danilova, K.V. Kondakov and others"

Employees with unused vacations should find out if unused vacations for previous years are burned out, and also what is the procedure for compensation for missed legal vacations. Employers - what threatens not to provide leave, even with the consent of citizens who have not rested.

Is it possible to transfer the vacation to the next year?

According to Art. 122 of the Labor Code of the Russian Federation, annual paid leave of at least 28 calendar days is mandatory.

Workers in Russia not only have the right to take vacations while receiving vacation pay, they must do so. If employees do not need to be afraid of an administrative penalty for refusing to annual leave, then he threatens the employer with a charge of infringement labor rights citizens.

The problem arises when a part of the staff does not take a vacation for several years, hoping to receive monetary compensation for the unused vacation.

If the employee did not use the vacation only once last year, then he has the right to postpone the vacation to the current year.

Note: article 124 of the Labor Code obliges to take off the missed annual paid leave no later than 12 months following the end of the fully worked calendar year.

Important nuances:

• must first be used non-vacation leave behind last year, only then - for the current one;
• employees of the personnel department or other persons scheduling vacations for the next year should take into account unused periods of paid vacation in the current year;
• in the application for the grant of leave, the employee is not obliged to emphasize that this is precisely the unused period. The text indicating the duration of the rest, which is no different from the vacation statement for the current year, is legally correct.

Should be ordered. If the initiator is an employee, his application is required. Both documents must contain a good reason, provided for in Art. 124 TK.

Even if there are such reasons, the manager is not entitled to leave the subordinate without paid rest for more than 2 years in a row.

Does unused vacation expire?

To figure out whether unused vacation in 2019 burns out or not is prompted by the ratification by Russia of the convention of the International Labor Organization, which provides for the preservation of the right for an employee to annual paid vacation only for 21 months.

Additionally

Upon dismissal, the employee is entitled to all previously unused vacations. You can exercise this right by providing the employee with monetary compensation for the entire accumulated period. If there are few unused days, then the employer can send the employee on vacation, and only after that - dismiss him.

This ratification did not lead to the adoption of amendments to the Labor Code of the Russian Federation and other regulations, which do not provide for any combustion of non-vacation holidays.

According to the letter of Rostrud dated June 8, 2007 No. 1921-6, employees who have not taken vacation for several years are still entitled to use all accumulated vacation days.

According to the norms of the Labor Code, the employer is obliged to provide each employee with an annual vacation of at least 14 calendar days. The remaining days - both for the current year and the previous ones - are split up arbitrarily (Article 125 of the Labor Code). Find out how you can divide vacation according to the labor code. This allows the employee to periodically take 1-2-day "day off" without leaving workplace for a long period, and the employer - to eliminate the violation of labor legislation in terms of paid holidays.

Does unused vacation expire? - the answer is in the video

What threaten several years without holidays

The above-mentioned ILO convention does not allow the replacement of guaranteed paid rest with compensatory cash payments.

The subordinate has the right to demand from the employer to compensate for unused vacation for previous years with money only upon dismissal (how compensation for unused vacation is considered, read in the article). By law, until the employment relationship is terminated, this amount cannot be received.

Note: persons who continue to work, monetary compensation is due exclusively for non-vacation, added to 28 calendar days or another period of the main one.

If, upon dismissal, the employer decides to compensate the employee for unused vacation only for the last 21 months on the basis of the same international convention, the citizen will apply to the State Labor Inspectorate. As a result:

• the audit will reveal that the person has not been granted paid leave for several years in violation of the law, which will entail an administrative fine of up to 50 thousand rubles;
• GIT will oblige to pay compensation for non-vacation leave in full.

If you challenge the decision of the GIT in court, it is not a fact that he will take the side of the employer - often judges make decisions in favor of employees.

To avoid problems with the law and / or large payments to those leaving, it is recommended that employees be sent on legal vacation in a timely manner in accordance with the Labor Code and the vacation schedule.

Ask your question and get free legal advice

In our country, it is not uncommon for an employer to different reasons refuses to let the employee go on vacation. In this regard, the topic of unused vacations worries a lot of people. In the article we will tell you whether unused vacation burns out, what compensation is due to the employee.

Do unused vacation days expire?

First of all, in this situation, you should understand whether unused vacation days can burn out. Labor Code It was established that every worker in the territory of our country is entitled to leave in the amount of 28 calendar days during the year. This is the so-called main vacation. There is also the concept additional leave for some professions and regions.

By law, leave must be taken within a 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 the vacation cannot be taken, it should be rescheduled for 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, in without fail for such a transfer, there must be weighty reasons that are enshrined in the Labor Code.

All reasons for postponing a vacation can be divided into those initiated by the employee and those that arise at the initiative of the employer. For ease of reference, they are listed in the table below.

Reasons initiated by the employee	Reasons initiated by the employer
personal circumstances. How respectful they are is decided by management.	Urgent work has appeared that no one can do except the employee who is going on vacation
Disease	Upgrading production technologies
	A business trip that cannot be rescheduled
	Company reorganization
	Temporary incapacity for work of the head, if the employee in this case is assigned his duties
	Unscheduled inspection of the organization by state bodies and higher units, if the participation of a vacationer is required in them

In all the above cases, the vacation is transferred to another period. At the same time, not a single unused day burns out. In the current year, you can use vacation days that have not been taken off 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, it is impossible to accumulate them in accordance with the law. The Labor Code establishes that the employer does not have the right to refuse to grant leave to an employee. Such a violation threatens with 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 joined the International Convention, which regulates the issues of granting holidays. Now it is impossible to receive compensation instead of the main days. In addition, you can not postpone vacation for more than two years.

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

• when checking by the labor inspectorate, problems may arise;
• there are options when the employee will have to pay compensation, the more such days accumulate, the greater the company's costs.

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

1. when giving an employee a vacation, it is issued from Friday (that is, legal days off are added to the number of vacation days);
2. without releasing the employee for a well-deserved rest, he is asked to write an application for vacation on weekends;
3. the employee is issued a vacation, but in fact he continues to work.

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

Compensation for an employee upon dismissal

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

1. Write an application for leave with subsequent dismissal. At the same time, he will not have to work out the prescribed two weeks if the unused vacation exceeds 14 days. Or reduce the period of working out by the available number of unused days of rest. Read also the article: → "".
2. Receive monetary compensation for all days of unused vacation.

Calculation of the number of unused vacation days and an example of their use upon dismissal

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

step number	Calculated indicator	Calculation features
1	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 vacation days are due to the employee for the hours worked.	The number of months obtained as a result of the calculation at the first stage is multiplied by the coefficient of the number of vacation days due in one month (28 / 12)
3	Determines how many days the employee spent on vacation	Calculated on the basis of a vacation order
4	Number of days of unused vacation	Defined as the difference between the results of paragraph 2 and 3

Suppose an employee has been employed by the company since July 14, 2014. On February 6, 2017, he retires own will. During the period of work, he was on vacation 3 times for 14 days. counting seniority in this company, we get that the employee worked 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 = 72.33 days

• Time off: 14 * 3 = 42 days
• Left unused 72.33 - 42 = 30.33 days

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

Compensation for unused vacation when going on maternity leave

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

option number	Name	Description
1	Adding unused days to sick leave	A woman goes on sick leave for pregnancy and childbirth earlier by writing an application for leave during the unused number of days
2	Extend parental leave	A woman comes out of the decree later for as many days as she did not take off on her vacations
3	Taking vacation in advance	Some companies allow women to use leave in advance for the periods when she will be on maternity leave and take sick leave for this number of days earlier

Application for non-holiday vacation days

To use vacation days left from previous periods, the employee must write an appropriate application. In fact, it is no different from the standard application for the next vacation and is drawn up according to the following rules:

1. The application is made out on an A4 sheet.
2. Traditionally, such documents are written by hand. In some organizations, it is allowed to design the text on a computer, followed by printing and signing.
3. The cap is written approximately in 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, you should write a statement from whom in the form of a phrase: "from the position, surname and initials in the genitive case."
4. The name of the document (application) is indicated with a capital letter from the red line. There is no dot at the end.
5. Again, a clear request is made from the red line - I ask you to provide leave from such and such a date for so many days. In some organizations, they are additionally asked to indicate for what period the requested vacation is due. Therefore, it is best to clarify this point in the accounting or personnel department.
6. Below is the signature of the employee and its transcript, as well as the date of the application. Read also the article: → "".

In principle, there is nothing complicated in writing an application. But it is better to always clarify what 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 regarding vacations has changed, do not seek to go on regular vacations. This is especially true for those who have a rather difficult financial situation. Such people rely on the fact that the employer will pay them compensation. As a result, employees often end up with nothing.

Judicial practice shows that employers often take advantage of the ignorance of employees in order to save money. The fact is that the right to transfer the vacation no further than 18 months is legally established 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 have been violated must file an appropriate application with the court no later than three months. Naturally, employees who continue to work for the company rarely do so. As a result, upon dismissal, they are faced with a refusal to pay the compensation due to them. When they go to court, they find out that the statute of limitations has long expired, and it is unlikely that anything will be done.

FAQ

The subject of unused vacations seems to be quite extensive and complex. This leads to a huge number of questions. We will try to answer the most common ones below.

It is legally established that the employer is obliged to provide leave to his employees. Therefore, without dismissal, it will not work to receive monetary compensation for the main part of it. Another thing extra days holidays. They can be replaced at the request of the employee cash payment. However, for several categories of citizens, such a right is not provided, they must rest in full. These include:

• employees who are under the age of eighteen;
• pregnant women;
• workers in hazardous industries.

Question number 2. The employee is accepted with the condition probationary period during three months. However, he quit after two years. Is he entitled to compensation for unused vacation?

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

Thus, the procedure for granting unused vacation days is clearly regulated in Russian legislation. The employee must clearly understand their rights so as not to end up with nothing. In case of violation of rights by the employer, the court should be applied within three months, otherwise it will be impossible to change the situation.

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