When can you reschedule your vacation? The employee did not exercise his right to annual paid leave in the calendar year

Is it possible to provide for a local regulatory act of an organization in accordance with part one of Art. 124 of the Labor Code of the Russian Federation, transferring an employee’s vacation to another period due to production needs without his consent?

Having considered the issue, we came to the following conclusion:

The employer does not have the right to enshrine in a local regulatory act the rule that, due to production needs, an employee’s vacation can be postponed to another date without his consent.

Rationale for the conclusion:

According to part one of Art. 123 of the Labor Code of the Russian Federation, the priority for granting paid vacations 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 start of the calendar year. Part two of the same norm stipulates that it is mandatory for both the employer and the employee.

As follows from the provisions of Art. 123 of the Labor Code of the Russian Federation, an employee who, by law, cannot determine the period of use of vacation, must go on vacation exactly within the time limits established by the schedule. The employer does not have the right to unilaterally change the date of vacation provision already scheduled without the consent of the employee (decision of the Moscow City Court dated January 20, 2016 N 33-1792/16, determination of the Vologda Regional Court dated August 21, 2013 N 33-3794/2013).

In accordance with part one of Art. 124 of the Labor Code of the Russian Federation, annual paid leave must be extended or transferred to another period determined by the employer taking into account the wishes of the employee in the following cases:

temporary disability of the employee;

the employee performs state duties during his annual paid leave, if the labor legislation provides for exemption from work for this purpose;

in other cases provided for by labor legislation and local regulations.

As follows from the first part of Art. 124 of the Labor Code of the Russian Federation, the employer is obliged to extend or postpone annual paid leave in the cases listed in this norm. In addition to those mentioned in part one of Art. 124 of the Labor Code of the Russian Federation, cases where the employer is obliged to extend or postpone an employee’s vacation can also be established by a local regulatory act of the organization. Thus, the employer in the local act of the organization can provide for other cases in which the vacation should be extended or postponed.

At the same time, when establishing such cases, the employer must take into account that annual paid leave is provided to employees in order to ensure their right to rest (Article 2 of the Labor Code of the Russian Federation).

As the Constitutional Court of the Russian Federation explained in its ruling dated October 23, 2014 N 2302-O, “Article 123 of the Labor Code of the Russian Federation, determining the order of granting paid vacations and the time of their use, is aimed at ensuring the implementation of the constitutional right to rest. Rules on the mandatory vacation schedule and notification employee about the start time of vacation, established by parts two and three of the said article, act as guarantees of the implementation of this constitutional right. Part two of Article 124 of the said Code provides for an additional guarantee of the implementation of the employee’s right to annual paid leave - the employee’s right to postpone the vacation in the event of the employer’s failure to fulfill the obligation. upon notification of the employee about the start time of vacation against signature." Despite the fact that this explanation is given with reference to part two of Art. 124 of the Labor Code of the Russian Federation, in essence it is applicable to the cases provided for in the first part of this article.

Considering what has been said, in our opinion, part one of Art. 124 of the Labor Code of the Russian Federation also provides an additional guarantee for the implementation of the employee’s right to annual paid leave - the employee’s right to reschedule leave if he cannot, for good reason, use the leave within the period specified in the schedule (see also, for example, the appeal ruling of the Krasnoyarsk Investigative Committee for Civil Cases Regional Court dated December 14, 2015 in case No. 33-13706/2015).

At the same time, part three of Art. 124 of the Labor Code of the Russian Federation directly provides that in exceptional cases, when the provision of leave to an employee in the current working year may adversely affect the normal course of work of an organization or individual entrepreneur, it is allowed, with the consent of the employee, to transfer the leave to the next working year. In this case, the leave must be used no later than 12 months after the end of the working year for which it is granted.

We believe that, within the meaning of the given norms in the local act of the organization, as cases in which vacation should be extended or postponed, the employer can only provide for cases where the employee has the right to postpone vacation due to the fact that he cannot, for good reasons. reasons to use vacation within the period specified in the schedule (for example, if it coincides with the period during which the employee, on the basis of a call-up certificate, has the right to use study leave; undergoing a medical examination during the vacation period (in the absence of signs of temporary disability), etc. .).

Judicial practice indirectly confirms this conclusion. Thus, the courts indicate that, according to Art. 124 of the Labor Code of the Russian Federation, the next paid leave can be postponed either at the request of the employee or with his consent; transfer of vacation by the employer on his own initiative without coordinating this issue with the employee is not provided for by the current labor legislation (see, for example, the appeal ruling of the Investigative Committee for civil cases of the Novgorod Regional Court dated April 17, 2013, the appeal ruling of the Investigative Committee for civil cases of the Khabarovsk Regional Court dated October 19, 2012 to case No. 33-6499).

The transfer of leave at the initiative of the employer due to production needs must be carried out in the manner established by part three of Art. 124 of the Labor Code of the Russian Federation, and, accordingly, is possible only with the consent of the employee.

As follows from the question, the employer in the situation under consideration, in fact, intends to enshrine in the local act its right not to provide the employee with paid leave within the period established by the schedule if there is a production need, which obviously does not correspond to the meaning of Art. 124 of the Labor Code of the Russian Federation and worsens the situation of the employee. And, as established by part four of Art. 8 of the Labor Code of the Russian Federation, norms of local regulations that worsen the situation of workers in comparison with established labor legislation are not subject to application.

It is possible to reschedule vacation to another time, but not for all employees. The initiator of the transfer can be the employer or the employee himself.

We will tell you what changes have occurred in the Labor Code of the Russian Federation, when and to whom leave can be transferred, and we will also determine what documentation to confirm the transfer and how to formalize it correctly.

All reasons for postponing vacation on the initiative of the employee or management - who will not have their vacation postponed?

In accordance with Article 124 of the Labor Code of the Russian Federation, the following grounds are provided for postponing the vacation period:

1. Availability of a certificate of incapacity for work. An employee can apply for it due to illness. While on sick leave, an employee can transfer the vacation time to another time or use part of it and transfer the rest of the period.
2. Urgent call to work and unfavorable production conditions of the company. An employee who is on vacation may come to work in exceptional cases and perform his official duties. This can happen, for example, if there is no one to replace him at the enterprise, or a tax or audit is expected. In such circumstances, the employee may request the employer to transfer part of the vacation time.
3. Business trip. If there is no one to replace the specialist, the employer has the right to call him to work and send him on a business trip. Of course, the trip must be supported by documentation in order to reschedule the vacation or part of it to another time.
4. Failure to comply with notification deadlines. Before an employee is sent on vacation, he must be notified of this - no later than 2 weeks. If he was informed about this earlier, for example, a week in advance, he can ask to reschedule his vacation.
5. Fulfillment of government duties. Civil servants who are on vacation and working during it can transfer their vacation time to another period.
6. Violation of the procedure for payment of compensation. If an employee does not receive compensation for the required vacation on time, he can arrange for its transfer and refuse compensation.
7. Other circumstances that may cause irreparable harm to the enterprise. An employee can be called to work, but only with his consent.

An employee always has the right to refuse to reschedule or urgently return to work unless there are compelling reasons.

What leave can be transferred?

Russian legislation allows the transfer of vacation and approves several types.

Let's consider which vacation can be rescheduled:

1. Annual. It can be primary or additional. Any one can be transferred.
2. Training.
3. Maternity leave.
4. For child care.

The law provides for certain categories of persons for whom leave can be transferred. The employer cannot deny them this right.

Let's list who is included in the list of lucky exceptions:

1. Persons working part-time. Only if the leave from the main job coincides in terms of leave with part-time work (Article 286 of the Labor Code of the Russian Federation).
2. Minors. You can not only reschedule, but also extend your vacation by 31 days.
3. Women going on maternity leave or on maternity leave.
4. Men whose spouses are on maternity leave(Article 123 of the Labor Code of the Russian Federation).
5. Workers who took custody of children under the age of 3 months (Article 122 of the Labor Code of the Russian Federation).
6. Military spouses. They can go on leave at a time when the serviceman is on leave.
7. Disabled people and war veterans.
8. Chernobyl victims.
9. Persons who work in enterprises with harmful or dangerous working conditions.

The employer may refuse to transfer the transfer to other employees.

Dates and deadlines for rescheduling vacations - how many times per year is an employee’s vacation allowed to be rescheduled?

Let us note several important nuances regarding the dates and timing of vacation transfers.

1. Number of transfers

The Labor Code of the Russian Federation does not establish how many times per year an employee or employer can postpone vacation. Thus, it turns out that vacation can be transferred to a year repeatedly.

Example:

At the Romashka company, citizen Portnova must go on vacation from March 1 to March 28. It turned out that in the period until March 9 she was on sick leave. Having returned to work on March 10, she wrote a personal statement and asked to reschedule her vacation to another time. She did not indicate a time frame.

The accountant suggested that Portnova go on vacation from June 1 to June 28. This period suited her. She was on vacation when on June 11 her employer sent her on an urgent business trip. Portnova agreed, but wrote an application to postpone part of the remaining vacation.

2. Transfer period

Let us note one more nuance. Vacation cannot be transferred to next year. It must be used within 12 months.

For example, if an employee must go on vacation from April 2018, then he must take the rest period from April 2018 to April 2019.

3. Transfer time

Vacation can be postponed for an indefinite period - but no more than 2 years. An employee has every right to choose when he needs to go on vacation.

How to take leave at the initiative of an employee - stages of the procedure

The procedure for registering a transfer at the employee’s initiative is divided into several stages.

Let's look at how vacation is arranged:

Stage 1. Completing a personal statement

The employee must submit a written request to the secretary - or directly to the employer. The document should indicate the reason for the transfer and the timing.

It is better to discuss the transfer period in advance with your superiors, agree on it, and then include it in the application.

The appeal can be made in any form. The main thing is that the request and the reasons for the transfer are indicated.

Example:

Stage 2. Approval of the Order

Example if the entire vacation is postponed:

Example, if part of the vacation is postponed:

The order must be signed by the head of the company and the head of the department.

Stage 3. Making changes to personnel papers

A HR specialist, accountant or company manager must make changes to personnel documentation.

Innovations must be recorded in the vacation schedule in the T-7 form. The basis for the transfer must be written down - this is the Order, its number and date of signing, as well as the date of the future vacation.

The timesheet also changes.

Example of changes made:

Stage 4. Familiarization with the Order

The employer must inform the employee about the transfer against receipt.

It is better that in the Order itself, at the end, it is written that the employee has read the document and has his signature.

The procedure for familiarizing/notifying the employee with the order, responsibility for unauthorized postponement of the vacation date

As you understand, familiarization with the Transfer Order Necessarily. If there is no agreement, the transfer of vacation will become impossible - that is, the new vacation will be considered invalid, and the old period will last for the specified period.

An employee may be held liable for violation of labor discipline.

For example, for a long absence from the workplace, more than 4 hours.

There can be many reasons:

1. The employee went on vacation without approval.
2. The citizen did not return to work after sick leave and did not provide a certificate of incapacity for work.
3. The employee arbitrarily divided his vacation into parts and decided to postpone his rest days to another time.

The time when the employee is absent will be considered truancy. For this, a specialist can be fired, or given a reprimand or reprimand (Article 192 of the Labor Code of the Russian Federation, Article 81 of the Labor Code of the Russian Federation).

But if a citizen goes to work on vacation, he will not be paid for his work. Of course, if he has not agreed on this point with management. Typically, the employee is given notice to return to work.

What to do if the employee’s rights were violated when rescheduling vacation?

Many workers have this question. We will answer what needs to be done if the rights to transfer vacation were violated and the employer refused:

Step 1. Negotiations with management

Try to talk to your manager and find out why you can’t reschedule your vacation.

If there are real reasons, ask them to eliminate them.

Please note that the employee has the right to go on vacation according to the schedule if he is denied a transfer, and receive the due compensation.

Step 2. Receive a written refusal from management

You must receive a response in writing if you submitted your application in writing.

Step 3. Submitting a complaint to the state labor inspectorate

There is a branch in almost every city in Russia.

Find out where the labor inspectorate is located and write a written complaint. Submit it along with a copy of the refusal received from your supervisor.

Step 4. Submitting a complaint to the Prosecutor's Office

Please also attach a written refusal from your superiors to your application.

If the labor inspectorate delays with the question, you can send a complaint to the Prosecutor's Office without waiting for an answer.

Nuances of calculating and paying vacation pay when rescheduling vacation or part of it

Vacation pay is calculated based on the employee's average earnings.

When calculating and paying compensation, the following nuances are taken into account:

1. The employee may initially receive compensation and then go on vacation.
2. An employee must receive compensation 3 days before going on vacation.
3. The specialist can return the money voluntarily.
4. The refund can be recorded in the Order.
5. Average earnings are “taken” for the year.
6. If there was no earnings, then the previous period is taken into account. This may be if the employee was on maternity leave for up to 3 years.
7. A citizen can go to work during vacation, ask for a transfer of days worked, but will not return compensation. It's his right.

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The employee’s right to an annual rest of at least 28 calendar days, while maintaining average earnings, is regulated by the labor legislation of the Russian Federation (Article 114 of the Labor Code). Is it possible to postpone the vacation to next year? Yes, this is possible: both at the initiative of the employer and at the request of the employee. Let's consider the regulatory nuances of document flow for such a procedure.

Postponement of vacation to next year - legal grounds

The sequence of staff vacations is fixed in the vacation schedule. A document in form T-7 is drawn up no later than December 17 of the current calendar year (Article 123 of the Labor Code). The procedure for transferring vacation at the request of the employee is enshrined in Art. 124 Labor Code of the Russian Federation. The grounds for extending/changing the rest period include:

1. Cases of employee incapacity and periods of illness of family members are not taken into account.
2. Fulfillment by an individual of various government duties requiring release from work. For example, this is participation in court hearings as an expert, witness, juror; summons for questioning to investigative authorities; participation in military training, etc.
3. Other situations provided for by local acts or labor legislation. For example, the internal labor regulations of an organization may stipulate that the illness of relatives is considered a reason for extending leave. Options and conditions for changing the holiday period should be reflected in acts with approval from the manager.

In this case, the transfer of leave at the request of the employee is carried out on the basis of a written application from the individual. The document is drawn up in the name of the manager in any form. A sample application for transfer of leave is given below.

Additional reasons for changing vacation dates:

• Failure to pay vacation pay on time, that is, no later than 3 days before the start of the rest period (Article 136).
• Notifying the employee about the start of vacation later than 2 weeks required by law (Article 123) or lack of notification.

In these cases, vacation dates are changed upon written application to reschedule the vacation. The document is drawn up in any form; oral notification is not enough. When changing the dates of regular vacations, you must remember that it is prohibited not to provide the organization’s personnel with vacation for 2 calendar years in a row.

Is it possible for an employer to postpone vacation to the next year?

In exceptional situations and subject to production necessity, the employer also has the right to postpone employees' vacation to the next year. Transfer dates must be agreed upon with the employee. Use of the remaining vacation is allowed within 12 months from the end of the year for which the vacation is provided.

Note! It is prohibited to postpone maternity, educational leave, as well as leave to care for children under 3 years of age. In addition, the employer does not have the right to postpone vacations for minors and employees performing duties in harmful/dangerous working conditions.

How to transfer a vacation

To process a vacation transfer, the HR officer or other responsible employee will need an application from the employee. After receiving the document and its approval, the manager issues an order for the transfer. What must be indicated in the order? First of all, this is the basis for changing the rest period, new vacation dates, an order to recalculate vacation pay and make changes to the vacation schedule.

The order must be brought to the attention of the employee against signature. In case of refusal, an act in any form must be drawn up. Additionally, it is necessary to make appropriate changes to the vacation schedule, personal card and time sheet. The schedule contains columns 8 and 9 for adjustments.

The company's accountant recalculates vacation pay, personal income tax amounts and insurance contributions. The method of refund may be different and is chosen at the request of the employee. For example, money can be returned directly to the organization’s cash desk or offset against future salaries. Any option is correct, the main thing is not to forget to recalculate taxes and submit updated calculations when data changes in different reporting periods.

Example of an application for rescheduling a vacation:

to CEO

LLC "Katyusha"

Mikhailova V.N.

From the seller Zvyagintseva N.A.

Application for transfer of vacation

I, Natalya Anatolyevna Zvyagintseva, was provided with annual pay from February 6, 2017 to February 19, 2017. In the period from February 9, 2017 to February 13, 2017, I was on sick leave (form No. 002 333 444 555 dated 02.09. 17).

I ask you to transfer 5 (five) calendar days of regular paid annual leave that coincide with days of illness to another period, namely for the period from June 5, 2017 to June 9, 2017.

Appendix - disability form No. 002 333 444 555 dated 02/09/17.

Conclusion - from this article, you learned whether the vacation is transferred to the next year, and what documents are drawn up. Compliance with personnel records management is mandatory for any organization/individual entrepreneur in order to avoid labor conflicts between employees and the administration of the enterprise.

It is said that every employee has the right to annual paid leave. The total duration of such leave, according to general rules, is 28 calendar days. Is it possible to postpone a vacation to the next year if it was not possible to take it off this working year for some reason?

In Art. 124 of the Labor Code of the Russian Federation lists the grounds on which an employee’s annual leave can be postponed. This:

• employee illness during vacation. In this case, the vacation is extended. If the employee wishes, he may not use the remainder now. He can use it at any other time, including next year;
• during the vacation the employee performed official duties;
• if the employee was not paid compensation for vacation on time;
• if the employee was not properly notified 2 weeks before the start of the vacation;
• if an employee going on vacation may adversely affect the current production state of the enterprise.

Carry-over leave must be taken within 12 months of the end of the working year in which it is due. It is prohibited to postpone vacation for more than 2 years.

In addition, it is prohibited to transfer leave to the following categories of employees:

• minors;
• workers who work in harmful and dangerous working conditions.

Before rescheduling an employee's leave, the employer must obtain a written agreement from the employee. Then the employee writes a statement. It must contain the following information:

1. "Hat" in the upper right corner. Here you need to specify:
   • the full name of the employer indicating its legal form;
   • Full name and position of the manager from the employer who is authorized to sign such statements;
   • Full name and position of the applicant. For large enterprises, it will be important to indicate the structural unit.
2. The word "Statement". It is written in the middle of the sheet;
3. Body of the statement:
   • please reschedule your vacation. It is necessary to indicate the duration of the transferred leave, as well as the period for which it must be submitted;
   • the reason why the employee requests to postpone the vacation;
   • the period during which the employee plans to use this leave. If it is not known exactly when the employee will be able to exercise such a right, then it may not be indicated.
4. Date of application;
5. The applicant's signature and its transcript.

If the enterprise is large, then the application must be endorsed by the head of the structural unit.

Based on the application, the employer issues an order. Then changes are made to the vacation schedule. But here you will need to indicate exactly for what period the vacation is transferred. Therefore, it is better to reach an agreement with the employer in advance.

Does vacation carry over to the next year if the employee cannot take it off in this work year? Yes! But only for no more than 12 months from the start date of the new working year and only if there are compelling reasons and with the written consent of the employee himself.

Cases transferring vacation to next year are found quite often in the management practice of organizations.

Legislative regulation of the issue has nuances that are important for both the employee and the employer to know about. Legal literacy in matters of labor relations - guarantee for the employee, that his rights will not be violated.

The employer, having the necessary information, will be insured from unfounded claims of the Labor Inspectorate, and other regulatory authorities.

Dear readers! Our articles talk about typical ways to resolve legal issues, but each case is unique.

If you want to know how to solve exactly your problem - contact the online consultant on the right or call free consultation:

Right to portability

In the Labor Code of the Russian Federation, Art. 124 the question of whether the vacation is transferred to the next year is considered. The cases when this rule is applied are also indicated.

So, Vacation is transferred to other days if:

Watch the video on granting leaves and manipulating them:

Ban

There are workers whose vacation cannot be rescheduled, even at the request of the employees themselves.

Art. points to them. 124 Labor Code. The following are prohibited:

• Minors, up to the age of 18.
• Workers employed in hazardous and hazardous industries.

In this case, even the written consent of the named employees to postpone the vacation will not save the employer from sanctions regulatory authorities during inspection.

The employer cannot refuse to reschedule vacation at the request of the employee. Usually one transferred with the wording “for family reasons”, with the general consent of the participants in the labor relationship.

It is prohibited, according to Art. 124 of the Code, deprive the employee of vacation more than two years in a row, for any reason. Thus, non-vacation leave can be transferred to the next year.

The law does not provide a clear answer How many times can you reschedule your vacation? However, based on the above, we can conclude that the transfer can be any number of times, but it is absolutely impossible not to go on vacation for 2 years in a row.

Vacation in parts

Often an employee asks whether it is possible to transfer only part of the vacation. In this case the employer cannot refuse.

In this case, you need to take into account all the above legislative nuances, and also keep in mind that according to the Labor Code, one of the parts of the vacation period cannot be less than 14 days, even at the initiative of the employee. The Code clearly states this. Violation can result in serious trouble for the employer.

Compensation

The Labor Code “gives permission” only in two cases to pay money to an employee:

In particular, civil servants and civil servants are entitled to such compensation.

Vacation compensation, regardless of its duration, prohibited for minors and pregnant women.

It is not allowed to compensate for annual leave of 28 days if the employee does not intend to rest, but plans to receive money instead. Such manipulations with labor legislation threaten large fines against the organization and its officials.

Documenting

Let's figure out how arrange a transfer of vacation at the request of the employee:

The transfer of leave for various reasons is prescribed in the Labor Code and federal laws that protect the rights of certain categories of workers. Guided by their provisions, it is quite possible to reschedule your vacation.