Can an organization refuse study leave? Denial of study leave

A nurse has enrolled to study law at a university, not in her specialty in her main job, the question is how to provide study leave for 20 calendar days with or without pay? Thank you.

Answer

If a nurse receives higher education for the first time, then it is necessary to pay for study leave (Article 177 of the Labor Code of the Russian Federation).

The rationale for this position is given below in the materials of the “Lawyer System” .

“Already from the second or third year of the institute, students, on their own initiative, strive to earn extra money, getting a part-time job or a full-time job, in order to gain theoretical knowledge along with practical experience. Managers learn about this, as a rule, after receiving a summons certificate. It is impossible to refuse study leave because of its length or due to the absence of a replacement, but in connection with obtaining a second specialist diploma, it is possible. One nuance is important here: the employee is entitled this type guarantees only when receiving education at the appropriate level for the first time. In other words, an employee who is studying to become an economist and is also a certified lawyer is not entitled to targeted leave at the expense of the employer. In this case, the employee must agree on a vacation at his own expense. But without an organizational order, an employee’s absence from the workplace is regarded as absenteeism with unpleasant consequences for him.

Study leave is not required if the employee receives a second higher education

Few employers are eager to employ student workers to carry out serious projects. Combining work and study causes disagreements between the parties, since at an inopportune moment for the company, an employee can bring a summons certificate and leave for the session. Therefore, HR employees, even when hiring, warn young applicants that the rhythm of work in the company does not allow for absence due to exams or tests. They are offered to solve problems with study leave on their own and in their free time from work.

And when employees contact the HR department, instead of additional leave for study, they are sometimes persistently advised to take vacation at their own expense or annual paid leave.

The workers agree, but then go to court trying to recover monetary compensation. The forced nature of leave without saving wages they prove by evidence of the transfer of the application and summons certificate to the employer and the lack of his response or direct refusal to grant study leave (appeal rulings of the Arkhangelsk Regional Court dated 05/27/2013 in case No. 33-2773/2013, the Supreme Court of the Republic of Bashkortostan dated 02/04/2014 in case No. 33-359/2014).

If there is no such evidence, then the employee will not be able to win (appeal ruling of the Sverdlovsk Regional Court dated July 1, 2014 in case No. 33-8285/2014).

So, subject to the requirements of the law (), the employee has the right to go on study leave, and it is in the interests of the employer to check the presence of mandatory conditions for granting it. It is important to keep track of the following points.

Training must take place via correspondence or part-time. The guarantees of the Labor Code of the Russian Federation do not apply to full-time or so-called full-time training. In other words, if study takes place outside of work and involves mandatory attendance at lectures, seminars and practices, then study leaves (with or without pay) are not allowed. An employee who has entered the full-time department of the institute and continues to work will have to get out on his own.

Part-time or part-time study does not interfere with combining two activities, and the employer has no obstacles to applying for study leave.

Government accreditation required educational program. Previously, it was important that an educational institution had state accreditation, but now it is important that the educational program has such accreditation (). Educational organizations post similar information on their websites ( Federal Law dated December 29, 2012 No. 273-FZ; hereinafter referred to as Law No. 273-FZ).

But in order to go on study leave, the employee is not required to provide a copy of the state accreditation certificate. This information is indicated in the call help in a special line.

If an employer wants to check the accreditation of an educational program, then this information can be found via the Internet, or by contacting a specific educational institution.

Education at this level should be completed for the first time. An employee is entitled to study leave only when receiving education at the appropriate level for the first time (). It will help to understand the levels of education and determine which one is the first and which is the subsequent one.

3 days

— it is during this period before the start of study leave that the money must be transferred to the employee.

For employers who employ university students, it is important to remember that there are two levels of professional education: bachelor's degree - the first level and specialty, master's degree - the second level. If an employee has a bachelor's degree, but he entered a master's program, then guarantees are due to him, since the levels of education are different and, moreover, the second is higher in status ().

Cases when education is considered second (subsequent), which means the employer has the right to refuse an employee study leave, are listed in. The guarantees provided for student workers will not be received by those who are studying:

for bachelor's degree programs or specialty programs - by persons who have a bachelor's degree, a specialist's diploma or a master's degree;
for master's programs - by persons who have a specialist's diploma or a master's degree.

In other words, a bachelor of jurisprudence (by diploma) who has entered a bachelor's degree in Economics will not be able to qualify for paid study leave; this is the same level of education. The same applies to a Master of Law who wants to change his field and go to study to become a journalist. He has already exhausted the limit of targeted vacations while receiving his first legal education.

Thus, if the employee meets these requirements, then study leave should be issued. Otherwise, the company faces a lawsuit with a high risk of losing. The employee will recover money for additional leave, interest for violation of payment deadlines, compensation moral damage and travel expenses to and from the place of study. This is confirmed by judicial practice: the ruling of the Kaluga Regional Court dated 02/03/2014 in case No. 33-25/14; appeal rulings of the Altai Regional Court dated 09/02/2014 in case No. 33-7213/2014, Saratov Regional Court dated 10/02/2014 in case No. 33-5630.

Moreover, similar consequences can await the company when an employee receives a second higher education. In this case, the court will find out whether a student agreement has been concluded between the parties. If it turns out that the employer sent the employee for training regardless of the fact that he is already a specialist in another field, then the court, by force, may side with the employee. As a result, he will receive payment for study leave, interest, and moral damages (ruling of the Kaluga Regional Court dated August 11, 2014 in case No. 33-2062/14).

By the way

Successful training at the institute will be confirmed by a certificate-call

There is no need to request an additional document from the employee signed by the dean or other university employee. Such actions are not provided for by law.

Some employers, in addition to the challenge certificate, require employees to provide another document confirming successful completion of curriculum. At the same time, they refer to, in which this requirement acts as mandatory for the provision of study leave.

But such a claim is unfounded, since the employee has the right to receive all guarantees and compensation on the basis of a summons certificate. This is what indicates the success of the training. This conclusion is confirmed by judicial practice ().

The duration of study leave cannot be shortened

In practice, in order to go on study leave, employees submit two documents: an application and a summons certificate. You can do without the first one (). But a summons certificate is needed, otherwise the employee will be left without additional leave.

A summons certificate is the main document that confirms the employee’s right to study leave as provided for (decision of the Sverdlovsk Regional Court dated March 12, 2013 in case No. 33-2986/2013). It contains necessary information to assess the employee’s right to the specified guarantee (form of training, information about accreditation, period of absence of the employee to take the session). Such a certificate is stored in the archives of the organization for at least 5 years (List, approved by order of the Ministry of Culture of Russia dated August 25, 2010 No. 558).

Now the form of the summons certificate is uniform (approved; hereinafter referred to as Order No. 1368). Previously, two forms were used: for secondary and higher educational institutions (orders of the Ministry of Education of the Russian Federation,). Students educational institutions managed without an official summons form.

When receiving the certificate, you need to check the completeness of its completion: the start and end dates of the session or entrance exams, the reason for absence (interim, final certification, preparation and defense of final qualifying work) etc. In addition, the certificate must bear the seal of the university. This will help avoid problems with tax authorities, who carefully check the validity of expenses.

After this, you can issue an order. As a rule, it is compiled according to form No. T-6, although you can develop and approve your own form ().

But the certificate is not always filled out correctly, for example, the code of the specialty being acquired is omitted, and employees sometimes present a copy of it instead of the original document, promising to bring the original later. These problems are solved this way.

When there is not enough information or there are doubts about the authenticity of a document, it makes sense to send a request to the educational institution. The courts come to such conclusions when considering “educational” disputes (cassation ruling of the Smolensk Regional Court dated 06/07/2011 in case No. 33-1853; appeal rulings of the Pskov Regional Court dated 07/08/2014 in case No. 33-1049/2014).

Official confirmation from the university should not be ignored, since this information will allow the employee to prove the employer’s guilt in court (decision of the Moscow City Court dated September 16, 2013 No. 4g/8-9629).

The situation with the absence of the original summons certificate is not so clear. When an employee abuses his right, ignores the employer’s demands and deliberately delays submitting the original summons certificate, the court may side with the company (appeal ruling of the Sverdlovsk Regional Court dated April 4, 2014 in case No. 33-4535/2014). But if the employee presented the certificate later by objective reasons, for example, due to a delay at the university, there are no grounds for refusing to issue and pay for study leave. When the court determines that the employee studied, he will be reimbursed the amounts required by law ().

Another controversial issue concerns the reduction of study leave. Sometimes employees, on their own initiative or at the request of managers, want to leave for a session later or return to work earlier than the time specified in the call-up certificate.

But for admission to secondary professional institution a third less time is allocated - 10 calendar days ().

To receive leave at your own expense to pass entrance examinations, the employee will have to submit a summons certificate for the specified number of days ().

Study leave must be paid in full before it begins.

An employee who combines work and study has the right to count on additional holidays while maintaining average earnings. Ignoring this rule ends in a conflict that will have to be resolved in court.

If the employee does not miss the deadline for filing a claim with the court to recover the uncollected amount, then the decision will be in his favor. Payment for study leave, of course, subject to all conditions for its provision, is the responsibility of the employer ().

Therefore, the employer needs to ensure timely payment of vacation pay. They are calculated according to the rules for paying annual basic and additional leaves. The amount of vacation pay is determined based on the average daily earnings, calculated according to the rules, approved. .

What guarantees are provided to a student employee?

Study leave (paid)
Targeted leave without pay
Payment for travel to and from the place of study
Reduced working hours.

But determining the amount correctly is not everything; it must be issued on time. For study leave, the three-day rule applies. It states that payment for vacation is made no later than 3 days before it starts. The norm is contained in.

However, it does not say whether 3 days should be counted in calendar or working days. According to Rostrud, we are talking about calendar days. If the issuance of vacation pay coincides with a weekend or holiday, then it must be postponed to an earlier date, and it is not necessary to do this the day before ().

In some companies, it is customary to pay for study leave after receiving the detachable part of the call-up certificate. This approach is justified by the fact that it is impossible to return the money if you fail the exams. After an employee complaint or scheduled inspection The GIT system will have to be changed. Thus, the St. Petersburg City Court recognized the order of the State Technical University to pay for study leave, including interest, as legal. Since in Labor Code In the Russian Federation there is no special procedure for paying average earnings for targeted leave; you need to be guided by Part 9 of Art. 136 Labor Code of the Russian Federation. In other words, the employer has 3 days to issue “training” vacation pay ().

Suppose an employee received the money on time in full, but fell ill during his studies. In this case, it is not clear whether it is necessary to postpone study leave, recalculate vacation pay and pay temporary disability benefits.

There is no need to extend or transfer leave, since this opportunity is provided only for annual paid leave (). In addition, the vacation period is set by the university, and the employer and student only comply with it. The only way out is for the employee to get another summons certificate from the institute.

At the same time, the employee should not hope for double payment for the same period. He will not receive money for sick leave that coincides with study leave. This follows from and.

An employee who has paid for his training has the right to tax deduction. Prerequisites— the educational institution has a license and provides documents on actual expenses (Article 219 of the Tax Code of the Russian Federation). The list of documents for the tax office is given in.

So, there will be no negative consequences if you pay for your study leave on time and in full. Delaying payments or establishing additional (beyond the law) conditions for receiving them will help the employee prove a violation of rights.

You can deduct money from an unscrupulous employee for study leave

The period of study leave is determined by the educational institution. The call certificate indicates the start and end dates of the vacation, and the duration in calendar days. This period is reflected in the order.

Sometimes employees take exams early. Employers learn about this from the tear-off part of the challenge certificate, the so-called confirmation certificate. It indicates the student’s full name, the name of the university and the actual duration of study. Employees bring confirmation after the session and it happens that the final dates differ from those indicated in the call certificate.

Some employers regard such a discrepancy as a basis for deducting from the employee the amounts that he received before the start of his study leave. But workers dispute such actions by management. The courts see no reason for withholding, since there is no such reason as completion full course studies before the expiration of study leave (appeal ruling of the Vologda Regional Court dated January 23, 2013 No. 33-285/2013).

There is another situation: an employee “fails” the session, does not pass the exams, and is expelled from the university for poor academic performance. In this case, it is also impossible to withhold vacation pay, since unsatisfactory training results do not apply to the grounds for withholding listed in. For the same reason, the employee will not have to return the amounts received for study leave and if he does not return the detached part of the summons certificate (appeal ruling of the Khanty-Mansiysk court Autonomous Okrug- Ugra dated September 24, 2013 No. 33-4087/2013).

It is more difficult when an employee, having completed his studies at the employer’s expense, quits before the end of the period stipulated by the student agreement. Some employees fail to challenge the withholding of vacation pay, and the courts take the side of the employers (cassation ruling of the Perm Regional Court dated November 16, 2011 in case No. 33-11677, ruling of the Supreme Court of the Komi Republic dated August 27, 2012 No. 33-3665/2012).

But not everyone shares this point of view. There is an opinion that an employee cannot be required to reimburse the average earnings paid during study leave. The company has the right to expect reimbursement of costs associated with training an employee if he quits before the agreed date (). These costs refer to the cost of training, consumables, additional classes, etc. However, payment of student leave is a guarantee provided. The employer does not have the authority to cancel it unilaterally, since it is established at the state, and not local or contractual level (rulings of the Sverdlovsk Regional Court dated March 28, 2006 No. 33-2139/2006, Irkutsk Regional Court dated August 15, 2012 No. 33-6608 /12).

An employee who believes that he was illegally denied leave has 3 months to go to court(). If this deadline is missed without good reasons he will lose the case ().

Therefore, in similar situations, it is worth preparing for legal proceedings and trying to convince the court that the average earnings for study leave are included in the company’s expenses stipulated in the student agreement.

But the employer has a high chance of getting money from an unscrupulous student employee. Thus, the Moscow Regional Court upheld the decision of the lower court, which recovered overpaid vacation pay from the employee. She hid the fact of receiving a second higher education and was granted study leave. At the same time, the parties did not include a condition guaranteeing student benefits in the employment or student agreement. When the deception was discovered, the employer went to court and won the case ().

Interesting question

Does the duration of study leave change if it falls on a holiday?

No, it doesn't change. The period of study leave remains the same as indicated in the summons certificate. You need to pay for all days (regular, holidays) falling during the period of such vacation.

For annual paid vacations during which a holiday () falls, a special rule is provided: the holiday is not included in the number of calendar days of vacation (). In fact, this gives the employee the opportunity to rest longer.

Some employers apply this rule to study leave, and in a unique way. They exclude holidays from the period of such leave, reducing its total duration. This is an unfortunate decision that the employee will be able to challenge in court ().

Professional help system for lawyers, in which you will find the answer to any, even the most complex question.

The procedure for granting study leave to employees causes a lot of controversy. This is due to the fact that the Labor Code of the Russian Federation, of course, does not contain answers to all questions and certain provisions require interpretation in conjunction with other norms of legislation. The latter is aggravated by the fact that the employer is not interested in the long-term absence of the employee and often tries to find options for “legal” non-provision of this type of leave, which ultimately leads to litigation.

Is the employer obliged to provide the employee with study leave, does the employee have the right to go on study leave on his own, or will absenteeism in this case be considered absenteeism? We will consider these and other questions taking into account judicial practice.

Providing study leave is an obligation, not a right of the employer

According to Art. 173 of the Labor Code of the Russian Federation, employees sent for training by the employer or who independently entered educational institutions of higher professional education with state accreditation, regardless of their organizational and legal forms in correspondence and part-time (evening) forms of education, successfully studying in these institutions, the employer provides additional leave with preservation of average earnings, including for preparing and defending a final qualifying thesis and passing state exams - 4 months.

In this case, does it matter whether the employee is trained according to the profile of the work he performs in the organization or not? And most importantly: does the employer have the right to refuse to provide an employee with study leave? Let's consider these issues using the example of the Decision of the Moscow Regional Court dated November 2, 2010 in case No. 33-21221.

V. filed a lawsuit against Kompak LLC and asked to recover wages for the period of study leave and compensation for moral damage. The plaintiff indicated that he had worked in the defendant’s company as a manager since August 2009. On April 15, 2010, he applied to the defendant for study leave with preservation of average earnings for the preparation and defense of his final qualifying thesis and passing state exams for the period from 04/12/2010 to 07/04/2010, based on the submitted summons certificate dated 04/07/2010. The specified documents were submitted to the defendant’s accounting department on 04/15/2010. General manager refused to pay for the vacation and offered to take the vacation at his own expense.

The defendant's representative court hearing did not recognize the claim, explained that the employer provides additional leave in connection with the employee’s studies, but believes that this is his right, but not his obligation. He also asked to take into account that the plaintiff is not studying according to his profile, so he can grant study leave at his own discretion.
By the decision of the Elektrostal City Court of the Moscow Region dated August 9, 2010, the claim was partially satisfied.

It was established that the plaintiff studied at the State educational institution of higher professional education "Russian State Social University of the Ministry of Education and Science Russian Federation", which has a certificate of state accreditation issued on June 23, 2008 by the Ministry of General and Professional Education of the Russian Federation. Taking this into account, the court reasonably satisfied the requirements for the recovery of average earnings for the period of being on additional leave, collecting in his favor an amount of 53,094 rubles. 32 kopecks

In addition, the court considered that the non-payment of wages to the plaintiff for 3 months was a fact of causing him moral harm, and, guided by Article 237 of the Labor Code of the Russian Federation, taking into account the degree of guilt of the employer, the volume and nature of the moral suffering caused to him, it considered it possible to recover compensation for moral damage in the amount of 3000 rubles.

The panel of judges agreed with the conclusions of the court and left unchanged the Decision of the Elektrostal City Court of the Moscow Region dated 08/09/2010, and the cassation appeal was not satisfied.

Unauthorized leaveAnddeadline for submitting a summons certificate

The question that most often arises in practice is whether an employee can independently use vacation days. The question arises due to the fact that, even receiving from an employee necessary documents– application and summons certificate, the employer refuses to issue an order for granting leave. In this case, workers act in different ways: they ask for administrative or annual paid leave for these days in exchange for educational leave, they are fired on at will due to the inability to undergo training, etc. However, there are also workers who, having provided the required documents to the accounting department, without waiting for the order to be issued, stop going to work. In this case, does the employer have the right to hold the employee administratively liable and fire him for absenteeism? Let's consider this question using examples from judicial practice.

According to Cassation ruling of the judicial panel for civil cases of the EAO court dated 07/08/2009 No. 33-286, A.A. filed a lawsuit against the Lenin Apartment Maintenance Unit (hereinafter referred to as KECH) for reinstatement at work and recovery of payment for the period of forced absence. She indicated that she had worked at the Leninskaya KECh since 03/23/2008. By order of 03/10/2009 she was dismissed for absenteeism committed on March 2 and 3, 2009, on the basis of subparagraph “a” of paragraph 6 of Art. 81 Labor Code of the Russian Federation.

I don’t agree with the dismissal order, because... I didn’t skip work on March 2-3. On February 27, she submitted an application for study leave and a summons certificate (facsimile) to the secretariat, and agreed in advance with her boss that she would go on additional leave, receiving consent. On March 17, 2009, after being discharged from the hospital at the Leninsky Central District Hospital, I learned that I had been fired on March 10, 2009, the day I was hospitalized from my place of work.

At the trial The defendant’s representative did not admit the claim, he explained to the court that the plaintiff was not allowed to go on additional leave because there was no summons certificate, In addition, the plaintiff did not provide a confirmation certificate from the previous session. The employer has followed the dismissal procedure. At the end of the working day A.A. was informed of the dismissal order, and in the evening after the end of the working day, she was hospitalized.

The court of first instance refused to satisfy the demands.

The cassation panel found the court's decision subject to cancellation on the following grounds. From the evidence presented it follows that A.A. was not absent on March 2 and 3, 2009. The reason for absence from work on March 2 and 3 was indicated by A.A. in the explanatory note: being on study leave. In the case materials there is a summons certificate confirming that on the day of the plaintiff’s dismissal the defendant had evidence that from March 2, the plaintiff had the right to be granted additional leave in connection with studying at a higher educational institution. The fact that the plaintiff did not provide the employer with a confirmation certificate from the previous session cannot be accepted as a circumstance characterizing the plaintiff as an employee or her attitude to work . Evidence confirming the presence of other violations labor discipline There are no evidence in the case materials that indicate the plaintiff’s dishonest attitude towards her labor duties.

Under these circumstances, the judicial panel determined that the decision of the Leninsky District Court dated 05/07/2009 was cancelled. Claims of A.A. to the Lenin Apartment Maintenance Unit regarding reinstatement at work - to be satisfied.

From the presented decision it is clear that the employee only needs to provide the employer with the documents necessary to apply for study leave. Issuing an order is the responsibility of the employer and references to the fact that the employee went on vacation without the employer’s permission will be invalid.

However, let us touch upon another interesting question about the deadline for submitting a call certificate to the employer. Is the employer obliged to provide study leave only from the date of receipt of the employee’s application and summons certificate, or does the employee have the right to independently go on study leave and later submit the necessary documents? In this case, will the employee’s absence from work be considered absenteeism or not? Let's look at two examples.

According to Resolution of the Moscow City Court dated June 17, 2010 in case No. 33-14935 Plaintiff I. was hired by the LLC as a specialist on November 5, 2008. By order of March 20, 2009, I. was dismissed under paragraph “a”, paragraph 6 of Art. 81 Labor Code of the Russian Federation – absenteeism. Considering the dismissal illegal, plaintiff I. filed a lawsuit for reinstatement at work, payment for study leave, and recovery of monetary compensation for moral damage in the amount of 200,000 rubles.

By an absentee decision of the Savyolovsky District Court of Moscow, I.’s claims were partially satisfied, the plaintiff was reinstated at work.

From the case materials, it is known that on March 2, 2009, the plaintiff, a 6th year student at Moscow State Technical University, was issued a summons certificate for additional leave from March 16 to June 30, 2009. According to the confirmation certificate, plaintiff I. was in university.

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Good afternoon, no, he does not have the right, provided that the employee is studying full-time, part-time or part-time (evening/shift) forms of education at an educational institution that has state accreditation. If the educational institution does not have state accreditation, the employee is granted leave only if the collective or employment agreement reflects the condition for granting study leave, regardless of whether the educational institution has the above document.

Guarantees and compensation for employees combining work with training are provided for in Art. Art. 173 - 177 Labor Code of the Russian Federation, as well as Art. 17 of the Federal Law of August 22, 1996 N 125-FZ “On Higher and Postgraduate Professional Education.”

According to Art. 173 of the Labor Code, employees who are sent for training by the employer themselves, as well as those who have entered an educational institution on their own initiative, also have the right to study leave. In addition, the employer is obliged to provide these vacations regardless of whether the employee’s training is related to his or her labor responsibilities, whether he started studying before or after being hired and whether or not the employee is on a probationary period.

study leave

The employee's graduation means for the employer that he will have to do without the employee for four months. But in order to receive such leave, the employee must provide a summons certificate in a certain form. He will go on study leave at the employer’s expense only if he is receiving higher education for the first time. To obtain a second higher education, the employee will have to take leave at his own expense.

Already from the second or third year of university, students, on their own initiative, strive to earn extra money, taking part-time or full-time jobs in order to gain practical experience along with theoretical knowledge. Managers learn about this, as a rule, after receiving a summons certificate. It is impossible to refuse study leave because of its length or due to the absence of a replacement, but in connection with obtaining a second specialist diploma, it is possible. One point is important here. An employee is entitled to this type of guarantee only when receiving education at the appropriate level for the first time. That is, an employee who is studying to become an economist and is also a certified lawyer is not entitled to targeted leave at the expense of the employer. In this case, the employee must agree on a vacation at his own expense. But without an organizational order, an employee’s absence from the workplace is regarded as absenteeism with unpleasant consequences for him.

Few employers are eager to employ student workers to carry out serious projects. Combining work and study causes disagreements between the parties, since at an inopportune moment for the company, an employee can bring a summons certificate and leave for the session. Therefore, even during hiring, the employer’s administration warns young applicants that the rhythm of work in the company does not include absence due to exams or tests. They are offered to solve problems with study leave on their own and in their free time from work.

And when employees contact the HR department, instead of additional leave for study, they are sometimes persistently advised to take vacation at their own expense or annual paid leave.

The workers agree, but then go to court, trying to recover monetary compensation. They prove the forced nature of leave without pay by evidence of the transfer of an application and a summons certificate to the employer and the lack of his response or a direct refusal to grant study leave.

If there is no such evidence, the employee will not be able to win the lawsuit.

So, subject to compliance with the requirements of the law, the employee has the right to go on study leave, and it is in the interests of the employer to check the presence of mandatory conditions for granting it. It is important to keep track of a number of points

Conditions for granting study leave.

1. Training must be carried out by correspondence or part-time.
For full-time or so-called full-time education, guarantees Art. 173 of the Labor Code of the Russian Federation do not apply. In other words, if study takes place outside of work and involves mandatory attendance at lectures, seminars and practices, then study leaves (with or without pay) are not allowed. An employee who has entered the full-time department of the institute and continues to work will have to get out on his own.

2. State accreditation of the educational program is required.
Previously, it was important that an educational institution had state accreditation, but now it is important that the educational program have such accreditation (Part 1 of Article 173 of the Labor Code of the Russian Federation). Educational organizations post similar information on their websites.

This information about state accreditation is indicated in the summons certificate in a special line.

If an employer wants to check the accreditation of an educational program, then this information can be found via the Internet or by contacting a specific educational institution.

3. Education at this level must be completed for the first time.
An employee is entitled to study leave only when receiving education at the appropriate level for the first time (Part 1 of Article 177 of the Labor Code of the Russian Federation). Law No. 273-FZ will help you understand the levels of education and determine which one is the first and which is the next.

It is important to remember about two levels of professional education: bachelor's degree - the first level and specialty, master's degree - the second level. If an employee has a bachelor’s degree, but he entered a master’s program, then the guarantees under Art. 173 of the Labor Code of the Russian Federation is due to him, since the levels of education are different and, moreover, the second is higher in status (Part 5 of Article 10 of Law No. 273-FZ).

Cases when education is considered second (subsequent), which means the employer has the right to refuse an employee study leave, are listed in Part 8 of Art. 69 of Law No. 273-FZ. The guarantees provided for student workers will not be received by those who are studying:

a/for bachelor's degree programs or specialty programs - by persons who have a bachelor's degree, a specialist's diploma or a master's degree;
b/for master's programs - by persons who have a specialist's diploma or a master's degree.

In other words, a Bachelor of Economics (diploma) who has enrolled in a Bachelor's degree in Law will not be able to qualify for paid study leave; this is the same level of education. The same applies to a Master of Law who wants to change his field and go to study to become a journalist. He has already exhausted the limit of targeted vacations while receiving his first legal education.

Thus, if the employee meets these requirements, then study leave should be issued. Otherwise, the employer faces a lawsuit with a high risk of losing. The employee will recover money for additional leave, interest for violation of payment deadlines, compensation for moral damage and travel expenses to and from the place of study. This is confirmed by judicial practice.

Moreover, similar consequences can await the company if the employee receives a second higher education. In this case, the court will find out whether a student agreement has been concluded between the parties. If it turns out that the employer sent the employee for training regardless of the fact that he is already a specialist in another field, then the court, by virtue of Part 1 of Art. 177 of the Labor Code of the Russian Federation, can take the side of the employee. As a result, he will receive payment for study leave, interest, and moral damages.

Documents for granting study leave

Successful training at the institute will be confirmed by a summons certificate. There is no need to request an additional document from the employee signed by the dean or other university employee. Such actions are not provided for by law.

Some employers, in addition to the challenge certificate, require employees to provide another document confirming successful completion of the curriculum. In doing so, they refer to Part 1 of Art. 173 of the Labor Code of the Russian Federation, in which this requirement is mandatory for the provision of study leave. But such a claim is unfounded, since by virtue of Part 4 of Art. 177 of the Labor Code of the Russian Federation, an employee has the right to receive all guarantees and compensation on the basis of a summons certificate. This is what indicates the success of the training. This conclusion is confirmed by judicial practice.

The duration of study leave cannot be shortened. In practice, in order to go on study leave, employees submit two documents: an application and a summons certificate. You can do without the first one, but a summons certificate is needed, otherwise the employee will be left without additional leave.

A summons certificate is the main document that confirms the employee’s right to study leave under Art. 173 Labor Code of the Russian Federation. It contains the necessary information to assess the employee’s right to the specified guarantee, that is, the form of training, information about the availability of accreditation, the period of absence of the employee to pass the session.

Now the form of the summons certificate is uniform (approved by Order of the Ministry of Education and Science of Russia dated December 19, 2013 No. 1368; hereinafter referred to as Order No. 1368). Previously, two forms were used: for secondary and higher educational institutions. Students of general education institutions did without an official call-up certificate form.

When receiving the certificate, you need to check the completeness of its completion: the start and end dates of the session or entrance exams, the reason for absence (interim, final certification, preparation and defense of the final qualifying thesis), etc. In addition, the certificate must bear the seal of the university. This will help avoid problems with tax authorities, who carefully check the validity of expenses.

Order on granting study leave

Order on granting educational leave As a rule, it is drawn up in form No. T-6, although you can develop and approve your own form (Part 4 of Article 9 of the Federal Law of the Russian Federation dated December 6, 2011 No. 402-FZ).

When there is not enough information or there are doubts about the authenticity of a document, it makes sense to send a request to the educational institution. Courts reach such conclusions when considering “moot” disputes.

Official confirmation from the university should not be ignored, as this information will allow the employee to prove the employer’s guilt in court.

The situation with the absence of the original summons certificate is not so clear. When an employee abuses his right, ignores the employer’s demands and deliberately delays submitting the original summons certificate, the court may side with the employer. But if the employee presented the certificate later for objective reasons, for example, due to a delay at the university, then there are no grounds for refusing to issue and pay for study leave. When the court determines that the employee studied, he will be reimbursed the amounts required by law.

Reducing the period of study leave

Rostrud, in paragraph 1 of letter No. 697-6-1 dated September 12, 2013, answered it negatively, justifying this intended purpose educational leave. Officials believe that the duration of leave should remain the same regardless of the circumstances, employee requests and other conditions. In other words, the parties do not have the right to change the period specified in the certificate of summons from the university.

Therefore, study leave must be issued for the entire period, and, if necessary, civil contracts must be drawn up with student employees.

But if an employee does not have enough leave to pass the “tails,” then he will have to ask the employer for leave at his own expense.

Targeted holidays

In addition to paid educational leaves, employees are entitled to targeted leaves at their own expense.

Student workers have the right not only to paid leave to pass the exam or diploma, but also to leave without pay. The latter are also provided on the basis of a call certificate.

Study leave usually means leave for which the employee will receive average earnings. But this doesn't always happen. For example, if an employee is just planning to become a student, then he will take entrance exams to a university at his own expense. These events will take no more than 15 calendar days (paragraph 2, part 2, article 173 of the Labor Code of the Russian Federation). But for admission to a secondary vocational institution, one third less time is allocated - 10 calendar days (paragraph 2, part 2, article 174 of the Labor Code RF). In order to receive leave at his own expense to pass entrance examinations, the employee will have to submit a certificate of summons for the specified number of days (Part 4 of Article 177 of the Labor Code of the Russian Federation).
Study leave must be paid in full before it begins.

An employee who combines work and study has the right to count on additional vacations while maintaining average earnings. Ignoring this rule ends in a conflict that will have to be resolved in court.

Therefore, the employer needs to ensure timely payment of vacation pay. Read how study leave is calculated

However, this norm does not say whether 3 days should be counted in calendar or working days. According to Rostrud, we are talking about calendar days. If the issuance of vacation pay coincides with a weekend or holiday, then it must be postponed to an earlier date, and it does not have to be done the day before.

In some companies, it is customary to pay for study leave after receiving the detachable part of the call-up certificate. This approach is justified by the fact that it is impossible to return the money if you fail the exams. After an employee complaint or a scheduled GIT inspection, the system will have to be changed. Since the Labor Code of the Russian Federation does not have a special procedure for paying average earnings for targeted leave, you need to be guided by Part 9 of Art. 136 Labor Code of the Russian Federation. In other words, the employer has 3 days to issue “study” vacation pay.

There is no need to extend or transfer leave, since this opportunity is provided only for annual paid leave. In addition, the vacation period is set by the university, and the employer and student only comply with it. The only way out is for the employee to get another summons certificate from the institute.

At the same time, the employee should not hope for double payment for the same period. He will not receive money for sick leave that coincides with study leave. This follows from paragraph. 1 tsp. 1 tbsp. 9 of the Federal Law of December 29, 2006 No. 255-FZ and sub. “a” clause 17 of the Regulations, approved. Decree of the Government of the Russian Federation dated June 15, 2007 No. 375.

An employee who has paid for his training has the right to a tax deduction. Mandatory conditions are that the educational institution has a license and provides documents on actual expenses (subparagraph 2, paragraph 1, paragraph 3, subparagraph 2, paragraph 1, article 219 of the Tax Code of the Russian Federation). The list of documents for the tax office is given in the letter of the Federal Tax Service of Russia dated November 22, 2012 No. ED-4-3/19630@.

Withholding of paid educational leave amounts from the employee

An employer may withhold money from an unscrupulous employee for study leave.

Some employers regard such a discrepancy as a basis for deducting from the employee the amounts that he received before the start of his study leave. But workers dispute such actions by management. The courts see no reason for withholding, since Art. 137 of the Labor Code of the Russian Federation there is no such reason as completing a full course of study before the expiration of study leave.

There is another situation: an employee “fails” the session, does not pass the exams, and is expelled from the university for poor academic performance. In this case, it is also impossible to withhold vacation pay, since unsatisfactory training results do not apply to the grounds for withholding listed in Art. 137 Labor Code of the Russian Federation. For the same reason, the employee will not have to return the amounts received for study leave even if he does not return the detachable part of the summons certificate.

But not everyone shares this point of view. There is an opinion that an employee cannot be required to reimburse the average earnings paid during study leave. The employer has the right to expect reimbursement of costs associated with training an employee if he quit before the agreed date (Article 249 of the Labor Code of the Russian Federation). Such costs mean the cost of training, consumables, additional classes, etc. However, payment of student leave is a guarantee provided for in Art. 173 Labor Code of the Russian Federation. The employer does not have the authority to cancel it unilaterally, since it is established at the state, and not local or contractual level.

An employee who believes that he was illegally denied leave has 3 months to go to court (Part 1 of Article 392 of the Labor Code of the Russian Federation). If he misses this deadline without good reason, he will lose the case. Therefore, in similar situations, it is worth preparing for legal proceedings and trying to convince the court that the average earnings for study leave are included in the company’s expenses stipulated in the student agreement. But the employer has a high chance of getting money from an unscrupulous student employee.

The question arises: Does the duration of study leave change if a holiday falls during it?

The period of study leave remains the same as indicated in the summons certificate. You need to pay for all days (regular, holidays) falling during the period of such vacation.
For annual paid vacations during which a holiday falls (Article 112 of the Labor Code of the Russian Federation), a special rule is provided: the holiday is not included in the number of calendar days of vacation (Part 1 of Article 120 of the Labor Code of the Russian Federation). In fact, this gives the employee the opportunity to rest longer. Some employers apply this rule to study leave, and in a unique way. They exclude holidays from the period of such leave, reducing its total duration. This is an unfortunate decision that the employee will be able to challenge in court. The rule established by Art. 120 of the Labor Code of the Russian Federation does not apply to study leaves, since they do not relate to annual leaves, but are provided for a certain period depending on the training program. In addition, the employee is entitled to average earnings for the entire period of study leave, including non-working days holidays.

Study leave - the main issues arising in practice

The Labor Code has five articles establishing guarantees for employees who combine training with work. However, the law does not specify the procedure for their provision, which leads to problems in practice.

Often, an employer requires proof of successful training from a student employee; in particular, they ask employees for a copy of the grade book or an extract from the grade sheet. Such demands are unlawful. If an employee has applied for study leave and provided a summons certificate from educational institution, the employer is obliged to issue him study leave, since the law does not require him to somehow confirm the success of his studies. To receive leave, the employee must submit an application for study leave and attach a summons certificate, which serves as proof for the employer that that the employee is studying successfully and is admitted to the exams.

Employers often do not know what to do when study leave coincides with the main leave. In such cases, the employer must ask the employee how much leave he intends to take. An employer cannot refuse study leave. He also cannot transfer on his own initiative annual leave for other dates. The employee must decide what vacation he will take. Of course, it is more profitable for an employee to take study leave, since during this time, including holidays, he retains his average earnings and still has the right to annual leave. If an employee asks to be granted study leave, the employer is obliged to postpone the annual leave to another time and extend it for the days of study leave.
If an employee wishes to take a session during annual leave, then he must withdraw the application for study leave, and the employer must issue annual leave to the employee as a general rule.
To avoid conflicts, it makes sense for the employer not to include such an employee in the vacation schedule for the time when the employee is called to a session.
Often, employers refuse to grant an employee study leave due to the fact that he has already received a bachelor's degree and entered a master's program. Such a refusal is also unlawful, since in this case the employee is receiving education at a different level, and therefore, by law, has the right to study leave (Part 5, Article 10 of the Federal Law of December 29, 2012 No. 273-FZ “On Education in the Russian Federation” ).
In practice, employers have a question: when to pay for study leave, before receiving the second part of the call certificate, or after? The employer is obliged to pay for study leave no later than three days before its start. Since the law does not specify how to pay for study leave, it is subject to general rules on vacation pay. For violation of the payment deadline for study leave, the employer must pay the employee monetary compensation in the amount of 1/150 of the Bank of Russia key rate of the amounts that were not paid on time.
In addition, the employer may be subject to a fine of up to 50 thousand rubles. in accordance with Part 6 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation, and the employee can recover compensation for moral damage in court in accordance with Article 237 of the Labor Code of the Russian Federation.

If the employee worked on an urgent basis employment contract and its period expires during study leave, payment of vacation pay must still be made in full, since the law does not allow study leave to be granted in parts, and therefore it cannot be paid in parts. If the employee’s right to study leave arose before the expiration of the contract, the employer is obliged to provide the employee with guarantees in full.

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