What to do if the employer refuses to transfer the employee’s annual paid leave in the absence of payment for the time of annual paid leave

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Published: 11/10/2019

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• 1 The employee has the right to leave 1.1 Legal framework

What to do if an employee refuses to go on vacation?

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According to the vacation schedule at ABV LLC, accountant Kopeikin K.K. a vacation is planned for the period 04/15/2020-04/30/2020, but it is during this period that an unscheduled on-site audit by the tax authorities should be carried out. Kopeikin K.K. It is mandatory to attend this event; in addition, you need to carefully prepare for the inspection. In this case, the employee will be asked to postpone the vacation to another time convenient for him.

In accordance with Art. 115 of the Labor Code of the Russian Federation, annual basic paid leave is provided to employees for a duration of 28 calendar days.

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In Art. 124 of the Labor Code of the Russian Federation presents categories of employees who are prohibited from not using or postponing vacation for reasons beyond the control of the employee, which may lead to the failure to provide the next vacation in the current working year:

• employees who have not been on annual paid leave for 2 years;
• pregnant employees;
• workers under 18 years of age;
• workers whose jobs are recognized as hazardous or hazardous.

To the chief accountant of ABV LLC, P.P. Petrova. The next annual paid leave is planned according to the vacation schedule in the period from 04/26/2020 to 05/11/2020 Petrova P.P. is in her fifth month of pregnancy. Just during the period when the chief accountant should be on vacation, an on-site tax audit should be carried out. In this case, the postponement of vacation can only be at the initiative of the employee. At the initiative of the employer, transferring vacation will be illegal.

It is necessary for both the employer and the employee to understand that the vacation schedule is a document binding on both the employer and the employee.

If, nevertheless, the employee continues to go to work while on vacation, he must be given a notice that in the event of voluntary return to work during the vacation period, payment for work performed will not be made.

Cash compensation for unused vacation is paid upon dismissal of an employee, as well as upon a written application from the employee for part of the vacation that exceeds 28 calendar days.

It should also be taken into account that replacing vacation with monetary compensation is not allowed:

• employees under eighteen years of age;
• workers engaged in heavy work and work with harmful and (or) dangerous working conditions;
• pregnant women.

Compensation for unused vacation upon dismissal must be paid to the employee on the day of dismissal.

Cash compensation in lieu of vacation time that exceeds 28 calendar days is usually paid along with wages for the corresponding month. In this case, payment of monetary compensation, which is associated with the dismissal of an employee, is carried out at the request of the employee.

The application can be written either printed or handwritten. If the application is written by hand, then it is drawn up exclusively in A4 format with a blue pen. Any other color ink is not acceptable.

The application must provide the following information:

• Title of the request. Indicate that this is a statement.
• To whom is it addressed? Indicate the last name, first name, patronymic and position of the manager (this could be: general director, head of department, president, etc.)
• Organization. Indicate the name of the organization.
• From whom. Here you must indicate the position of the employee and his last name, first name, patronymic.
• Text. The test should include a request for payment of compensation for unused vacations. In this paragraph, you must indicate the number of days for which the payment should be accrued and refer to Article 126 of the Labor Code of the Russian Federation.
• Date and signature of the employee with transcript.

We invite you to read: Transferring sick leave to the next year

If additional days of vacation subject to payment have been accumulated over several years, then the application should indicate all days indicating the previous years in which the days of unused vacation fell.

The employee has the right to leave

Company employees have the right to rest. For each year worked, the right to annual paid leave is granted (Article 122 of the Labor Code of the Russian Federation). This is one of the guarantees of normal working conditions provided to employees, and all organizations (entrepreneurs) are obliged to ensure compliance with this legal requirement.

It is necessary to provide an employee with vacation, even if he does not want it! The law prohibits not providing leave (Part 4 of Article 124 of the Labor Code of the Russian Federation):

• employees for two consecutive years;
• workers engaged in work with harmful (dangerous) working conditions;
• employees under 18 years of age.

It has. This right was granted to him by Part 3 of Art. 124 Labor Code of the Russian Federation. But here two conditions must be met:

1. 
   Production necessity (the presence of a situation at the enterprise in which the provision of leave will negatively affect the production process). Whether such a situation arises in each specific case is up to the employer to decide.

2. The presence of the employee’s consent to cancel his prescribed rest.

If the two above conditions are met, then the employer can postpone the vacation period to the next working year, however, such a vacation must take place during this next year, otherwise, during inspections by regulatory authorities, the employer may experience adverse consequences, which we will consider below. This is explained by the fact that the above article of the Labor Code of the Russian Federation directly prohibits not providing rest for two years in a row.

There are cases when an employee intends to exercise his right to rest at a time of his choosing for one reason or another (be it the need to interrupt the work process to resolve personal issues, or the desire to simply relax), but management is not always obliged to meet halfway.

Important! In some cases, the employer may refuse to provide leave.

One of these cases is the insufficient duration of work with the employer during the first year after hiring. Art. 122 of the Labor Code of the Russian Federation establishes the rules for granting annual paid leave, according to which for the first year of work the right to go on vacation is given only after the first six months of work.

Another common case is an employee’s request to go on vacation unscheduled. The fact is that this document is mandatory for both management and employees of the company (Article 123 of the Labor Code of the Russian Federation), therefore violation of its provisions is unacceptable.

However, there is still an opportunity to go on vacation outside of the vacation schedule. To do this, you simply need to change this schedule, because in addition to the column with the planned date of vacation, there is a column with its actual provision. Therefore, if the management turns out to be loyal, then it is quite possible to go on vacation during the period specified by the workers.

In addition, there are cases when an employee expresses a desire to take a break before terminating the employment relationship. He has such a right under Art. 127 Labor Code of the Russian Federation. This right is also the right of the employer, but not his responsibility at all, therefore, the provision of leave may be refused.

Leave without pay is regulated by Art. 128 Labor Code of the Russian Federation. It is provided at the request of the employee for one reason or another. The validity of these reasons is assessed by the employer, by agreement with whom the duration of the leave is determined.

Attention! Article 128 of the Labor Code of the Russian Federation reserves for the employer only the right to provide unpaid leave.

However, there are a number of cases when the employer is obliged to provide such leave, such cases are enshrined in the above article (participants of the Second World War; persons who have reached retirement age but continue to work; disabled people; cases of the birth of a child, marriage, etc.), in other cases it remains just rely on the benevolence of the leadership.

In such cases, it is necessary to apply to various authorities for the restoration of your violated right to rest; simply not going to work at the time prescribed by the vacation schedule is undesirable, because this fact can be classified by the employer as absenteeism, for which you can lose your job altogether.

According to Art. 352 of the Labor Code of the Russian Federation An application for protection can be sent to the labor inspectorate, trade union or court. If there is a labor dispute commission at the enterprise, the employee has the right to apply there (Article 382 of the Labor Code of the Russian Federation). Also, if you are not allowed to go on vacation, no one forbids you from sending an appeal to the prosecutor’s office.

Article 382 of the Labor Code of the Russian Federation. Bodies for consideration of individual labor disputes

Individual labor disputes are considered by labor dispute commissions and courts.

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Documents confirming the fact of being in an employment relationship with this employer must be attached to the application. Such confirmation is an extract from the work record book; a copy of the employment order and the employment contract will also not be superfluous. Next, you need to confirm your right to leave for a specific period. To do this, you must attach a copy of the vacation schedule.

After contacting the appropriate authority, you must wait for the complaint to be considered. As a rule, such requests are satisfied with a subsequent order to the employer to fulfill the obligation to provide leave.

The process of assigning vacations is regulated by several articles of the Labor Code of the Russian Federation, namely 115, 123, 124 and 125. They spell out all the main points, including possible exceptions or deviations from the vacation schedule.

In accordance with Russian legislation, all employees without exception have the right to paid leave. The vacation schedule is drawn up and approved by the enterprise at the beginning of the calendar year. It must take into account the interests of both the employer and the workers themselves.

However, deviations from the vacation schedule are still possible. In particular, there are a number of categories of the population who reserve the right to go on vacation at any time. These include:

• persons under the age of majority;
• women before receiving maternity leave, immediately after it, as well as immediately after parental leave;
• men during the period when the wife is on maternity leave;
• victims of the Chernobyl accident.

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Legal basis

Guaranteed annual leave can be postponed or transferred by agreement between the employee and the employer in several cases. These include:

• employee illness;
• fulfillment by an employee of state obligations that require complete separation from his main job for a certain time;
• the legal entity, for one reason or another, did not notify the employee of the upcoming vacation two weeks in advance;
• the employer did not provide vacation funds in a timely manner (the law establishes a period no later than 3 days before going on vacation);
• in all other cases provided for by federal legislation and regulations of Russia. Their full list is presented in Article 16 of the Labor Code.

In the event that an employee’s vacation for several days or weeks may have a negative impact on the economic activities of the enterprise, by agreement of the parties, the vacation period may be postponed to the next calendar year.

In the case when the transfer is made at the initiative of the employee himself, his manager must certify the corresponding application, after which it will come into force.

If the transfer of vacations is related to production problems, the personnel service and accounting department must have the written consent of the employee to carry out such an operation.

To avoid conflict situations, it is better to indicate new vacation dates in the new agreement.

Please note that you can postpone your vacation for no more than 12 months. In addition, this measure should not be a practice due to its exclusivity. For abusing the transfer of vacations, the employer may be subject to penalties.

The Labor Code of the Russian Federation prohibits not providing an employee with rest for more than two years in a row.

In situations with minor employees or those employed in hazardous industries, such failure to provide leave is punishable in fact - without a deadline. The corresponding norms are prescribed in Article 124 of the Labor Code.

Administrative responsibility is expressed in the following theses:

• in case of the first violation, a legal entity is punishable by a fine in the amount of 30 to 50 thousand rubles, and for each subsequent violation - by a fine of 50 to 70 thousand rubles;
• In case of the first violation, an individual entrepreneur or official is punishable by a fine of 1 to 5 thousand rubles, and for each subsequent violation - by a fine of 10 to 20 thousand rubles. In addition, officials may be subject to disqualification for a period of 1 to 3 years.

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Why is a vacation schedule necessary?

The vacation schedule is one of the most important documents in personnel records management, allowing qualitative regulation of employee vacation periods taking into account the needs and capabilities of the organization, while complying with the norms of labor legislation regarding the right of employees to annual rest.

The vacation schedule is a unified form No. T-7, approved by Decree of the State Statistics Committee of the Russian Federation of January 5, 2004 No. 1, but in reality the organization has the right to independently decide to fill out the specified form No. T-7 or develop its own document form adapted for a specific organization .

When can an employee reschedule vacation by deviating from the vacation schedule?

The regulations provide for reasons for postponing vacation, which can be either dependent on the employer and employee, or independent:

Example:

According to the vacation schedule at ABC LLC, accountant Kopeikin K.K. a vacation is planned for the period 04/15/2021-04/30/2021, but it is during this period that an unscheduled on-site audit by the tax authorities should be carried out. Kopeikin K.K. It is mandatory to attend this event; in addition, you need to carefully prepare for the inspection. In this case, the employee will be asked to postpone the vacation to another time convenient for him.

The procedure for reflecting compensation for unused vacation in personnel documents

If the organization paid the employee, at his request, compensation for part of his unused vacation, then this fact is reflected in the employee’s personal card.

§ in column 4 “Number of calendar days of vacation” - the number of days replaced by compensation;

If the employee himself does not want to rest

In this case, he should be forcibly sent on long rest and familiarized with the instructions and orders. Even if the employee does not want to exercise his right, this will not become a mitigating circumstance when imposing a fine. Be sure to record going to work on rest days and, if possible, stop work activity, even threatening disciplinary action. Violation of the schedule for taking time off is a disciplinary violation, since it contradicts the approved Labor Regulations and other local regulations of the enterprise.

Graduated from the Ural State Law Academy in 2001. I have worked in government agencies and commercial organizations, and I am in private practice.

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Calculation of compensation for unused vacation

To determine the amount of compensation for unused vacation both in relation to days of rest exceeding standard vacation and upon dismissal, it is necessary to calculate the employee’s average salary for 1 day.

The employee’s income that was received by him in the 12 months preceding the payment of compensation is taken as the basis.

To determine the average daily income of an employee, the income for the year must be divided by 12, and the resulting figure, in turn, divided by 29.3.

Thus, the average daily earnings of an employee = D / 12 / 29.3.

In this formula, D is the employee’s annual salary, 12 is the number of months in the year, and 29.3 is the value established in the regulation, which is the average number of days in each month of the year.

After determining the average daily earnings, all that remains is to multiply the resulting amount by the number of days of unclaimed vacation, and the result will be the amount of compensation for unused vacation payable to the employee.

How long can an employee not use vacation?

In accordance with Art. 115 of the Labor Code of the Russian Federation, annual basic paid leave is provided to employees for a duration of 28 calendar days.

The employee has the right to divide the vacation, but not less than into periods of 14 days.

In Art. 124 of the Labor Code of the Russian Federation presents categories of employees who are prohibited from not using or postponing vacation for reasons beyond the control of the employee, which may lead to the failure to provide the next vacation in the current working year:

• employees who have not been on annual paid leave for 2 years;
• pregnant employees;
• workers under 18 years of age;
• workers whose jobs are recognized as hazardous or hazardous.

Example:

To the chief accountant of ABV LLC, P.P. Petrova. The next annual paid leave is planned according to the vacation schedule in the period from 04/26/2021 to 05/11/2021 Petrova P.P. is in her fifth month of pregnancy. Just during the period when the chief accountant should be on vacation, an on-site tax audit should be carried out. In this case, the postponement of vacation can only be at the initiative of the employee. At the initiative of the employer, transferring vacation will be illegal.

Taxation of compensation for unused vacation

When paying compensation for unused vacation, the employer is required to calculate and pay personal income tax on this amount.

Since compensation for unused vacation upon dismissal must be paid to the employee on the day of dismissal, the personal income tax withheld from it must be transferred to the budget upon its actual payment, in particular, no later than the day of actual receipt of cash from the bank for payment compensation either on the day of transfer of this amount to the employee’s account or on the employee’s instructions to the accounts of third parties.

Income tax

Compensation for unused vacation is accounted for as labor costs for income tax purposes on the date of accrual.

We invite you to read: Property tax deduction from the employer

In this case, the amount of compensation for unused vacation is included in expenses, even if the organization creates a reserve for vacation payment in tax accounting;

Compensation for unused vacation is taken into account as labor costs for the purposes of calculating tax under the simplified tax system with the object “income reduced by the amount of expenses” on the date of payment to the employee of compensation for unused vacation.

Insurance premiums

Compensation for unused vacation is subject to insurance premiums (including injuries) in full.

This applies to compensation for unused vacation without dismissal, and to compensation for unused vacation upon dismissal of an employee.

Who can go on vacation outside of the schedule

The rules for scheduling vacations, in accordance with the Labor Code, identify six categories of employees who have the legal right to take unscheduled vacations. These include:

• Minors under 18 years of age;
• Subordinates who are in part-time status (provided that this work is secondary for them);
• Persons married to military personnel (regardless of their rank);
• Female employees who are 6-8 months pregnant (during such leave, the subordinate must write an application for maternity leave);
• Workers serving in dangerous or harmful conditions.

It is important to know! The rest of the people go on vacation strictly according to the schedule developed by the human resources department. If changes appear in their plans that affect the date of the proposed vacation, then the authorities take them into account only with the consent of the beneficiaries.

If the employer does not pay compensation for unused vacation

If the employer does not pay compensation for unused vacation, the employee can do the following:

• Write a claim to the employer demanding compensation for unused vacation.
• Contact the Labor Inspectorate with a statement about the violation of your labor rights. This can be done by sending an application by email, drawing up a paper application, or visiting the labor inspectorate in person. Your application will be considered within 30 days. During the consideration of the employee’s appeal, the Labor Inspectorate staff will make a request to the employer in order to find out the reason for non-payment of vacation pay and will inform the employee in writing about the results of the inspection.
• Go to court. Unlike the Labor Inspectorate, the court will not be able to hold the employer accountable. But the court may order the employer to pay the entire amount of vacation pay due to the employee. In the statement of claim, the employee should indicate the violated rights and put forward a demand to recover compensation from the organization for unused vacation. After a court decision is made, on the basis of a writ of execution, the company’s accounts will be seized and the entire amount of vacation pay due to the employee will be paid by the employer.

For any delays in paying compensation to the employee for unused vacation, the employer is obliged to accrue and pay interest.

Thus, the organization must not only pay the principal amount of the debt, but also pay interest for each day of delay in the amount of 1/300 of the refinancing rate of the amounts not paid on time.

Administrative liability for violation of labor legislation is established by Article 5.27 of the Code of Administrative Offenses of the Russian Federation.

According to Article 5.27 of the Code of Administrative Offenses of the Russian Federation, violation of labor legislation entails the imposition of an administrative fine

• for officials in the amount of 1000 to 5000 rubles;
• for persons carrying out entrepreneurial activities without forming a legal entity - from 1000 to 5000 rubles. or administrative suspension of activities for up to 90 days;
• for legal entities – from 30,000 to 50,000 rubles. or administrative suspension of activities for up to 90 days.

Violation of labor legislation by an official who has previously been subjected to administrative punishment for a similar administrative offense entails disqualification for a period of 1 to 3 years.

In addition, unscheduled inspections may be carried out in relation to the employer’s activities by tax inspectors, labor inspectors and prosecutors.

Amount of fine

The amount of the fine for refusing an employee leave is given in Article No. 5.27 of the Code of Administrative Offenses of Russia. This sanction applies to legal entities and officials, entrepreneurs operating without forming a legal entity. Much depends on whether the violation of labor laws was committed for the first time or is regular. The fine you will have to pay for failure to provide leave for more than two years is shown in the table below.

Partial or complete failure to pay vacation pay on time entails the following fine:

• for officials – 10,000-20,000 rubles;
• for legal entities – 30,000-50,000 rubles;
• for persons who carry out entrepreneurial activities, but are not legal entities - 1000-5000 rubles.

The employer's responsibility for non-compliance with the Labor Code and other regulations is given in the Code of Administrative Violations of the Russian Federation.

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Employer's financial liability for failure to pay compensation for unused vacation

1. I haven't used vacation for 2 years. Can I claim all the vacation days accumulated over previous years?

Answer: You have the right to both the provision of unused vacation and compensation for unused vacation. In this matter, you need to reach an agreement with your employer.

1. Are employers obligated to inform employees of the vacation schedule, given the fact that the schedule was drawn up solely with the agreement of vacation periods with each employee?

Answer: It is necessary to familiarize employees with the vacation schedule, which will allow the employer to remind the employee of the responsibility of complying with labor laws.

Fine for failure to provide leave to an employee – Accounting

08.10.2018

The labor inspectorate may impose a fine for failure to provide leave to an employee. In this article we will tell you in what order an employer provides an employee with leave, what the consequences of violating labor laws are, and what to do if an employee wants to work without vacations.

The legal basis for regulating the relationship between employee and employer is the Labor Code of the Russian Federation, letters and orders of the Ministry of Labor of the Russian Federation. The State Labor Inspectorate (SIT) checks compliance of the parties to labor relations with the law, and fines for its violation on the basis of the Code of Administrative Offenses of the Russian Federation.

Before we find out what sanctions the State Tax Inspectorate can impose on a company for failure to provide leave, let’s figure out who gets the right to go on leave and when.

An employee can apply for rest in the form of vacation after six months of continuous work in the company. If the manager does not mind, then leave can be obtained earlier (Article 122 of the Labor Code of the Russian Federation).

In the future, vacation is provided in accordance with the vacation schedule - the company annually forms it in December for the next calendar year.

You will find a form and a sample of filling out the schedule in this article.

The vacation schedule is approved by order of the manager and is given against signature for review by each worker. From this moment on, the schedule is a mandatory document for both the employee and his management. Its absence is a reason for a fine from the State Tax Inspectorate.

For each year of work, the employee is entitled to leave of at least 28 calendar days (Article 115 of the Labor Code of the Russian Federation).

Find out more about calculating length of service for annual leave here.

The vacation period can be divided, but one of the parts must be at least 14 days.

A number of categories of employees may qualify for additional days of rest - find out about this in the publication “Annual paid leave under the Labor Code (nuances)”.

Annual leave can be extended (or postponed by agreement between the employer and employee) in the following situations:

• the worker is sick;
• the worker performs state duties - if they require release from the main job;
• the employer forgot to notify the subordinate 2 weeks in advance about the upcoming start of the vacation;
• the employer did not pay vacation pay on time (3 working days);
• in other situations provided for by federal legislation and local regulations (Article 136 of the Labor Code of the Russian Federation).

For more information about shifting vacation days due to illness, read the publication “Transferring vacation due to sick leave.” If an employee going on vacation will negatively affect the economic activities of the organization, then it is allowed to transfer the vacation period to the next working year. Can the director not allow vacation? according to schedule due to production needs and other vacation issues - on our forum. Documented transfer of vacation time at the request of the employee is drawn up on the basis of an application from the employee and an order from the manager. If the change in vacation dates is due to production needs, then the personnel service or accounting department must have the employee’s written consent to the change. For the convenience of both parties to the labor relationship and to minimize disputes, do not forget to indicate in the manager’s order to postpone the vacation the new period of the employee’s vacation rest. The employee must be allowed to go on vacation no later than 12 months after the end of the working year for which the vacation is due (Article 124 of the Labor Code of the Russian Federation) . Transferring vacation is an exceptional measure and should not be practiced constantly; the employer may receive a fine for shifting vacation from year to year.

Fine for failure to provide leave for more than two years

The Labor Code of the Russian Federation prohibits not providing annual paid leave to an employee for 2 years in a row, and prohibits minor workers and those engaged in activities with hazardous working conditions from providing leave in principle (Article 124 of the Labor Code of the Russian Federation). Administrative liability is established for these violations. :The statute of limitations for violation is 1 year. If a company breaks the law and does not send workers on vacation, then at the end of the calendar year, vacation days do not disappear anywhere, but remain the organization’s debt to the employee. Sigma LLC for 4 years from the date of employment of the programmer Vasilchenko Igor Valentinovich did not provide him with leave, citing the fact that Vasilchenko is a valuable employee and is constantly needed by the company. Therefore, the programmer has the right to 4 × 28 days = 112 calendar days of vacation (Igor Valentinovich does not belong to the category of beneficiaries entitled to additional days). If Vasilchenko decides to resign from Sigma LLC, then the company will have to pay monetary compensation for the programmer’s unused vacation, and not for 1 year, but for all 4 - 28 days for each. Unused vacation days for previous years of work are provided to the employee in the current calendar year:

• or as part of the vacation schedule;
• or by agreement between the employee and his management (the worker writes an application for leave, indicating the number of unused days of rest, and the employer endorses the application and issues an order for leave).