Whether the annual paid vacation burns out. The procedure for granting unused leave

Date: 15.10.2019

The employee took 2015 annual leave. He has unused annual paid leave for the period 2010-2011, which he is requesting to be granted. In this case, is the employer entitled to grant the employee this leave?

09.12.2015

Employees are provided annual leave with the preservation of the place of work (position) and average earnings (Article 114 of the Labor Code of the Russian Federation).

Paid leave is provided to the employee in each working year (Article 122 of the Labor Code of the Russian Federation). Only in exceptional cases, with the consent of the employee, it is allowed to postpone the vacation to the next working year. In this case, the vacation 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).

Failure to provide annual paid leave for two consecutive years, as well as 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) is prohibited. However, the presence of this prohibition does not deprive the employee of the right to leave that has not been used for two years, but only serves as a basis for bringing the employer to administrative responsibility (Article 5.27 of the Administrative Code of the Russian Federation; decision of the Moscow City Court dated July 18, 2014 No. 7-6238 / 14, Saratov Regional Court dated 28.03.2014 in case No. 21-96).

The employee retains the right to use all vacations that were not provided to him on time (Art. 114,122,124 of the Labor Code of the Russian Federation). Annual leave for previous working periods can be granted either as part of the vacation schedule for the next calendar year, or by agreement between the employee and the employer. At the same time, labor legislation does not contain provisions providing for the use of leaves for working periods in chronological order... This approach is presented both in official clarifications (letters of Rostrud dated 01.03.2007 No. 473-6-0, dated 08.06.2007 No. 1921-6) and in judicial practice (the decision of the Kirovsky District Court of Khabarovsk Khabarovsk Territory from 25.02.2015 in case No. 2-238 / 2015).

Thus, an employee who has not taken his annual leave in the corresponding working year is not deprived of the right to use it in the future under any circumstances. If the employee has not been granted annual leave for previous working periods, he may first be granted leave for the current working period, and then for previous periods. At the same time, the legislation does not prohibit the granting of an employee with several annual leaves in a row without going to work between them. Based on this, the employer has the right to grant the employee the previously unused annual leave in this case.

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 very many. In the article, we will tell you whether unused vacation is burned out, what compensation is due to the employee.

Do unused vacation days burn up?

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

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

Moreover, in mandatory there must be weighty reasons for such a transfer, which are enshrined in the TC.

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

Employee-initiated reasons	Employer-initiated reasons
Personal respectful circumstances. The management decides how respectful they are.	Urgent 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 transferred
	Company reorganization
	Temporary incapacity for work of the manager, 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 the vacationer is mandatory in them

In all of the above cases, the vacation is carried over to another period. At the same time, not a single unused day will burn out. V this year you can use vacation days that have remained unclean during the previous 18 months.

Unused vacation compensation

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 stipulates that an employer has no right to refuse an employee to grant leave. Such a violation may result in 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 leave. Now it is impossible to receive compensation instead of the main days. In addition, vacation cannot be postponed for more than two years.

It is not profitable for the company's management that employees accumulate unused vacation days. There are several explanations for this:

when checked by the labor inspectorate, problems may arise;
there are options when the employee will have to pay compensation, the more such days accumulate, the more the company's expenses will be.

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 techniques:

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

All of these options cannot be called effective. On the one hand, the management convinces employees that in these cases they can simultaneously receive two payments - wages 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 vacation days in a particular organization.

Employee dismissal compensation

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

Write a vacation application 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 working period by the available number of unused rest days. Read also the article: → "".
Receive monetary 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 vacation days, it is made according to a certain algorithm, which is presented in the table

Step number	Calculated indicator	Calculation features
1	The number of months worked in the organization	If the number of days in an incomplete month is less than fifteen, they should be discarded. If more than 15 - add one month.
2	How many vacation days the employee is entitled to 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 relying on 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	Determined as the difference between the results of point 2 and 3

Suppose an employee has been employed by the company since July 14, 2014. From February 6, 2017, he quits on their own... During the period of work, he was on vacation 3 times for 14 days. Calculating 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 entitled:

28/12 * 31 = 72.33 days

Had a holiday: 14 * 3 = 42 days
Remained unused 72.33 - 42 = 30.33 days

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

Compensation for unused leave 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 registration of unused leave, which are presented in the table.

Option No.	Name	Description
1	Adding unused days to sick leave	A woman goes on sick leave for pregnancy and childbirth earlier, having written a leave 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 a walk on her holidays.
3	Getting a vacation in advance	Some companies allow women to take leave in advance for periods when she will be on maternity leave and that number of days earlier to go on sick leave.

Application for non-holiday vacation days

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

The application is drawn up on a sheet of A4 format.
Traditionally, such documents are written by hand. In some organizations, it is allowed to format text on a computer, followed by printing and affixing a signature.
The cap 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 name and initials of the addressee. Next, you should write from whom a statement in the form of the phrase: "from the position, surname and initials in the genitive case."
The name of the document (application) is indicated with a capital letter from a red line. There is no full stop at the end.
Once again, a clear request is drawn up from the red line - I ask you to provide a vacation with such and such a date and a duration of such and such days. In some organizations, they are additionally asked to indicate for what period the requested leave is due. Therefore, it is best to clarify this point with the accounting department or the personnel department.
Below is the signature of the employee and its decoding, as well as the date of the application. Read also the article: → "".

In principle, there is nothing difficult in writing a statement. But it is better to always clarify what text should be written in it, because in some rules it is clearly established.

Difficulty paying compensation for unused vacation

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

Judicial practice shows that employers often use the ignorance of employees in order to save money. The fact is that the law establishes the right to postpone vacation for no more than 18 months and only on the basis of valid 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 apply to the court with a corresponding statement no later than three months. Naturally, employees who continue to work in the company rarely do this. As a result, upon dismissal, they are faced with a refusal to pay compensation due to them. Going to court, they find out that the statute of limitations has long expired, and it is unlikely that anything can be done.

Frequently asked Questions

The topic 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 for his employees. Therefore, without dismissal, it will not be possible to receive monetary compensation for the main part of it. Additional vacation days are another matter. At the request of the employee, they can be replaced with a 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 eighteen years of age;
pregnant women;
employees engaged in hazardous work.

Question number 2. Employee accepted on condition probationary period during three months. However, after two years, he quit. 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 his rights so as not to end up with anything. In case of violation of rights by the employer, you should apply to the court within three months, otherwise it will be impossible to change the situation.

One click call

Failure to provide leave for two consecutive years is expressly prohibited by the Labor Code of the Russian Federation; in the presence of such a violation, the employer may be held administratively liable.

Many employees fear that unused leave from previous years of work will not be provided. However, the “burning out” of such vacations is considered a violation of labor legislation on the part of the employer, so he is obliged to provide the employee with all the prescribed vacation days. The only legal option to skip your own vacation during the working year is to postpone it to the next working year. Moreover, such a transfer is possible only with the consent of the employee himself, and the organization is obliged to pay him this vacation during the next calendar year.

What to do if you miss your vacation?

By agreement with the employer, the employee can go on vacation several times during the working year until he has used all the prescribed calendar days. In this case, at least one part of the vacation must be 14 days or more.

If the employee agreed to skip his own vacation for the current working year, then you should carefully read the vacation schedule, which will be approved for next year... The specified schedule should provide for the granting of double leave for this employee (it can be divided into parts). For an employee entitled to an annual rest of twenty-eight days, the length of leave with a pass must be fifty-six days for the next working year. If the employer refuses to release the employee for such a period, claiming that his vacation for the previous year has "burned out", then it makes sense to appeal to the supervisory authorities with a complaint.

How to negotiate with the employer when missing a vacation?

If the employee did not go on vacation for one working year, and the employer cannot release him next year for fifty-six calendar days, then there is an opportunity to agree with the employer. Labor legislation allows partially replacing rest with monetary compensation. In this case, only a part that is more than twenty-eight calendar days can be replaced. In other words, when missing his own vacation for one year, the employee can agree to replace the transferred vacation and receive additional income... At the same time, vacation for the past time will not “burn out”, but will be converted into money.

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

By general rule established by article 122 of the Labor Code, the employer is obliged to provide employees with paid leave every year. In exceptional cases, vacation can be postponed to the next working year, but this requires the simultaneous presence of the following conditions:

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

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

Labor law prohibits the failure to provide an employee with annual leave for two consecutive years.

So, if due to production needs (with the consent of the employee) in the current working year, the employee is not granted leave, the employee must take 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 production needs, the employee was not granted leave for this year. The employee must take leave for this working year by May 31, 2015.

Registration of the transfer of vacation for the next year

So, the employer, due to production needs, decided to postpone the employee's vacation to the next year. The employee agrees with this decision.

Note that labor legislation does not oblige to formalize the employee's consent to the postponement of vacation in writing. However, in order to avoid conflict situations, the personnel officer may ask the employee to confirm in writing his consent to postpone the vacation to the next year.

Having received such consent, the employer issues an order to postpone the employee's vacation to the next working year. If the vacation is postponed 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, unused vacations can be taken into account in the vacation schedule for the next calendar year. Or ask the employee to write an application for granting him unused vacation in the current year.

If a lot of unused vacations have accumulated

It is quite common for employees to accumulate holidays over several years. Accordingly, the employer is faced with the question: 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 be provided with all the accumulated unused vacation days.

Please note that the employer is obliged to provide the employee with all unused vacations, and upon dismissal, pay compensation for all "unused" vacation days. Regardless of the period over which these vacations have been accumulated, they do not burn out.

Compensation for unused vacation

Many workers mistakenly believe that if they do not take leave this year, the employer is obligated to pay them compensation for the unused vacation. A regular employee must explain to employees: compensation for unused vacations is paid only upon dismissal (Article 127 of the Labor Code of the Russian Federation). If the labor relationship between the employee and the employer does not end, it is generally impossible to pay compensation for "unaccompanied" vacations.

The employer can pay compensation for unused vacation only if the duration of the employee’s vacation exceeds 28 calendar days. Moreover, compensation can be paid only for the days of exceeding the standard vacation.

Please note that the employer does not have the right to independently decide on the replacement of vacation days with monetary compensation. He can do this only if the employee submits a written application for the payment of monetary compensation instead of vacation days.

Example. The employee has been assigned an irregular working day and has been granted an additional leave of three calendar days. The total duration of the employee's annual leave is 31 calendar days. At the written request of the employee, the employer can replace three days of vacation with monetary compensation.

Note that in order to replace the vacation with monetary compensation, unused annual leaves are not summed up. 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 take leave for two years, and he has accumulated 56 vacation days. In this situation, it is impossible to replace vacation with monetary compensation, since the duration of the vacation for each year does not exceed 28 calendar days.

Keep in mind that for certain categories of workers, replacing leave with monetary compensation is generally prohibited. Regardless of the duration of the main and additional vacation, it cannot be replaced with compensation:

Pregnant women;

Minor workers.

And workers employed in jobs 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 an employee for a long time did not use the vacation and the provision of a fairly long rest is impossible from a practical point of view, many employers get out of this situation as follows. The employee is offered to terminate labor contract... At the same time, he is paid compensation for all unused vacations and the next day after dismissal, the employee is recruited again.

Note, despite the fact that in this situation there are no violations of labor legislation, in order to apply this method, it is necessary that the employee and the employer have a trusting relationship.

Responsibility for not granting leave

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

Keep in mind that in the event that long-term work without vacation is not an isolated case in the organization, but the accepted practice, the labor inspector has the right to regard not granting vacation to each employee as a separate violation. Accordingly, the amount of the fine will depend on how many employees did not use their vacation in a timely manner (resolution The Supreme Court RF dated August 15, 2014 No. 60-AD14-11).

State Labor Inspectorate

The employee is going on vacation for 2016 and insists on calculating compensation for unused vacation for early periods(there are unused vacations for the period 2014-2015). The number of vacation days is 28 calendar days. Extra days no vacation. Experts from the GARANT Legal Consulting Service have found out whether the employee's request is legitimate

16.05.2016

According to Labor Code employees are provided with annual leaves with preservation of their place of work (position) and average earnings ( Art. 114 Labor Code of the Russian Federation).

As a general rule, the duration of the main annual paid leave of employees is 28 calendar days. Separate categories employees are granted extended main leave of more than 28 days in accordance with TC RF and other federal laws ( Art. 115 Labor Code of the Russian Federation).

In addition to the basic annual paid leave, some categories of employees are provided with additional annual paid leaves (the conditions for granting such leaves are specified in Articles 116-119 Labor Code of the Russian Federation). According to Art. 120 Of the Labor Code of the Russian Federation, when calculating the total duration of annual paid leave, additional paid leaves are summed up with the annual basic paid leave. In this way, annual paid vacation includes both the main vacation, including extended ( Art. 115 Labor Code of the Russian Federation) and additional vacations (articles 116-119 Labor Code of the Russian Federation), when such leaves are granted to an employee. The term "annual paid leave" is a generalized concept.

When you can replace unused vacation with compensation

According to part one Art. 126 Of the Labor Code of the Russian Federation in cases not related to the dismissal of an employee, at his written request, a part of the annual paid leave exceeding 28 calendar days can be replaced monetary compensation... When summing up annual paid leave or transferring annual paid leave to the next working year, monetary compensation may replace a part of each annual paid leave exceeding 28 calendar days, or any number of days from this part (part two Art. 126 Labor Code of the Russian Federation). Note the use in Art. 126 Of the Labor Code of the Russian Federation, the words "can be replaced" means that the payment of monetary compensation during the continuation of labor relations is a right, and not an obligation of the employer (see letters Rostrud dated 01.03.2007 No. 473-6-0 and dated 08.06.2007 No. 1921-6). Therefore, the employer can refuse to satisfy the employee's request for compensation and insist on the actual use of the entire leave.

28 calendar days is the minimum number of days off from work that the employer is obliged to provide to the employee for rest during each year of work. Accordingly, the employee for whom each annual leave individually exceeds 28 calendar days can qualify for compensation for part of the vacation (the employee is entitled to an extended main vacation and (or) annual additional paid leaves). Monetary substitution provisions The main annual paid leave and the annual additional paid leave do not apply to pregnant women and employees under the age of 18. Also, it is not allowed to substitute monetary compensation for annual additional paid leave for employees employed in jobs with harmful or hazardous working conditions for work in appropriate conditions (except for the payment of monetary compensation for unused leave upon dismissal, as well as cases established TC RF) (part three Art. 126 Labor Code of the Russian Federation).

Those employees who are entitled to only 28 vacation days annually, no matter how many vacation days they accumulate, can receive monetary compensation only upon dismissal ( Art. 127 Labor Code of the Russian Federation).

Thus, labor legislation allows the replacement of monetary compensation for only a part of the annual paid leave exceeding 28 calendar days. Monetary compensation for all unused vacations is paid only upon dismissal.

The company has the right to refuse to compensate the employee for unused vacation.

In the situation under consideration, the employee did not use annual paid leave for the period 2014-2015. In this case, the number of days of each annual paid leave is 28 calendar days (additional leaves are not provided to the employee).

In such circumstances, the employee's claims for the accrual of monetary compensation for unused vacations are unlawful. Accordingly, the employer must refuse to pay the employee monetary compensation for unused vacations for the periods 2014-2015.

In conclusion, we recall that paid leave should be provided to the employee annually ( Art. 122 Labor Code of the Russian Federation, Art. 3 ILO Convention No. 132 "On Holidays with Pay" (ratified by the Russian Federation Federal law dated 01.07.2010 No. 139-FZ. The Convention entered into force in the territory Russian Federation September 6, 2011)). In exceptional cases, with the consent of the employee, it is allowed vacation postponement for the next working year, if the vacation was not used in the current year (part three Art. 124 Labor Code of the Russian Federation). Failure to provide annual paid leave for two consecutive years is prohibited (part four Art. 124 Labor Code of the Russian Federation). According to the provisions Art. 114, Art. 122, Art. 124 Of the Labor Code of the Russian Federation, if for any reason employees have unused annual holidays for previous working periods, they retain the right to use all due annual paid holidays.