Good afternoon.
In this case, the schedule is mandatory for both the employer and you, so the employer has the right to refuse to postpone the vacation. Providing a voucher here does not affect anything - from the point of view of the law, it can be transferred without a voucher and, if a voucher is provided, the transfer can be refused.
The price of a trip is not personal data.
“Labor Code of the Russian Federation” dated December 30, 2001 N 197-FZ (as amended on July 3, 2016) Labor Code of the Russian Federation, Article 123. Sequence of granting annual paid leave
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 two weeks before the start of the calendar year in the manner established by Article 372 of this Code for the adoption of local regulations.
The vacation schedule is mandatory for both the employer and the employee.
The employee must be notified of the start time of the vacation by signature no later than two weeks before it begins.
Certain categories of employees in cases provided for by this Code and others federal laws, annual paid leave is provided at their request at a time convenient for them. At the request of the husband annual leave he is granted while his wife is on maternity leave, regardless of the time of his continuous work with this employer.
There are exceptions in the law, but they are unlikely to apply to your case:
“Labor Code of the Russian Federation” dated December 30, 2001 N 197-FZ (as amended on July 3, 2016) Labor Code of the Russian Federation, Article 124. Extension or postponement of annual paid leave
Annual paid leave must be extended or postponed to another period determined by the employer taking into account the wishes of the employee in the following cases:
temporary disability of the employee;
performance by an employee during annual paid leave government duties, if for this purpose the labor legislation provides for exemption from work;
in other cases provided for by labor legislation and local regulations.
If the employee was not promptly paid for the period of annual paid leave or the employee was warned about the start time of this leave later than two weeks before its start, then the employer, upon a written application from the employee, is obliged to postpone the annual paid leave to another date agreed with the employee.
In exceptional cases, when granting leave to an employee in the current working year may adversely affect the normal course of work of the organization, individual entrepreneur, it is allowed, with the consent of the employee, to transfer the vacation 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.
It is prohibited to fail to provide annual paid leave for two years in a row, as well as to not provide annual paid leave to employees under the age of eighteen and employees engaged in work with hazardous and (or) hazardous conditions labor.
Next: does the manager have the right to refuse to divide additional leave into parts. Vacation is 29 calendar days, did you want to divide it into 2 parts? If yes, what reasons are there for refusal? According to Article 125 Part 1 of the Labor Code, vacation can be divided by agreement with the manager. If she refuses, must she give a reason? And which one?
Olga
Formally, the law speaks of the consent of the parties, so if the law is interpreted literally, it can simply be refused without any special grounds.
“Labor Code of the Russian Federation” dated December 30, 2001 N 197-FZ (as amended on July 3, 2016) Labor Code of the Russian Federation, Article 125. Division of annual paid leave into parts. Review from vacation
By agreement between the employee and the employer, annual paid leave can be divided into parts. Moreover, at least one part of this leave must be at least 14 calendar days.
Recall of an employee from vacation is permitted only with his consent. The part of the vacation unused in this regard must be provided at the employee’s choice at a time convenient for him during the current working year or added to the vacation for the next working year.
Employees under the age of eighteen, pregnant women and employees engaged in work with harmful and (or) dangerous working conditions are not allowed to be recalled from vacation.
The right to vacation in Russia is guaranteed to employees by law. The Labor Code regulates the procedure for their provision, transfer and refusal to provide various types. Whether an employer can refuse leave to an employee or not depends on the situation. By general rule refusal to provide a correctly documented application while respecting the right to receive a period of rest is illegal.
If an employer refuses to provide leave without proper grounds, then his actions can be appealed.
Features of providing annual leave
The right to rest arises for employees who have worked for the company for at least 6 months. Depending on the time of year when the six-month period expires, the employee is either given rest at his request or included in the schedule for the next year. The schedule is drawn up by the organization in December of the current year and approved no later than December 17. Each employee is notified of the completed priority schedule by signature.
Does the employer have the right to refuse?
Can another leave requested early be denied? They can, if the employee does not belong to a preferential category that has the opportunity to receive an annual rest period until the end of the six-month period of work.
Lawyer at the Legal Defense Board. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and others regulatory documents to regulatory authorities.
Does an employer have the right to refuse leave?
Yes, if some emergency circumstances arise that threaten business or production downtime.
For example, one employee was hospitalized, someone needs to transfer his affairs (Article 124 of the Labor Code).
However, with the question: “Does the employer have the right not to allow vacation as scheduled?” the situation is somewhat different. If we are talking about (and in this case this is exactly the case), then you need:
- good will of the employee whom they plan to retain.
In all other cases, the boss cannot do this. mandatory for both parties to the labor relationship (Article 123 of the Labor Code).
Strictly speaking, this is the only situation when it is behind the scenes, and not the head of the company, who remains last word. So, now that we have more or less dealt with the question: “Can an employer refuse leave?” Let's move on to an equally important topic - specific situations in which this action is legal in relation to the employee.
Failure Cases
Strictly speaking - in all the others. Exceptions are made if, for example, we are talking about an employee who is about to give birth or a young father (adoptive parent), a donor who has provided blood at least forty times, a holder of the Order of Glory, a Hero of the Russian Federation, a disabled working person, a student, a pensioner, or the parent (spouse) of a military personnel.
In everything related to holidays outside established schedule, especially, the final decision rests with the boss.
And if the boss says a reasonable “no” (and for this it is enough to say words about production necessity or business downtime), then this will be his legal word.
Even if we are talking about a preferential category of citizens, no punishment is provided for the entrepreneur for this.
In other words, we are talking about cases:
- requesting leave without having worked the six months required by law;
- leave “at your own expense” (also administrative);
- paid outside the schedule;
Separately, it should be said about simple things. If it did not occur through the fault of a particular this employee, then the boss can apply for his vacation “retroactively” only with his own consent. If an employee asks to be given a vacation without pay (Article 128 of the Labor Code), the issue is resolved in agreement with the boss.
But if an employee goes on vacation and the company has a need for this employee, then we recommend that you read the article:.
Categories of employees who do not have the right to refuse
On the one hand, the law provides for several cases for this (Article 128 of the Labor Code). This is the birth of a child, pregnancy, a call to a session, death or death close relative, wedding. In such cases, it is necessary to give up to five calendar days off.
Also there are certain categories of employees who have a priority right to unscheduled holidays. This:
If you belong to one of the above categories of employees, then you don’t have to ask the question: “Can they be denied leave?”, since the management has no legal grounds for refusing these people.
Denial of leave without pay
Can they not let me go on vacation without saving? wages and in what cases can the employer refuse? In everyone. If the boss justifies his refusal to grant leave to an employee on the basis of production necessity or that the business will “stand down” in your absence. The law does not provide any sanctions for him for this. Well, I had to behave well.
This is one of the arguments in favor of the fact that you still need to maintain loyalty to the leadership to the best of your ability - this is the very well from which you will definitely have to drink water - for example, you need to leave for a session or the funeral of an aunt who died abroad. So, if you're wondering; “They won’t let you go on vacation outside of the schedule, what should I do?”, I’ll have to disappoint you, in fact, there’s nothing you can do about it.
But it’s a completely different matter if the boss balked before going on a planned paid vacation (Articles 352, 382 of the Labor Code), and the employee is clearly against taking it upon himself additional work. So, let's figure it out, if you are not allowed to go on vacation as scheduled - what should you do?
In this case, you can and should apply for protection of your rights to one (or several) authorities:
Often an appeal to the inspectorate is enough. To do this you must submit:
- passport;
- or other documents confirming your work in the organization;
- documentation confirming the refusal of leave;
- complaint.
You can do this on the inspection website, or you can do it during a personal visit, handing the complaint to the inspector and making sure that it has been accepted and registered.
The complaint must contain:
At all review period - fifteen days. But it can increase to a month. It also happens that the inspector simply refuses to check, immediately indicating that this is a matter for the prosecutor’s office or court. Usually one call to the prosecutor is enough for the company's management to come to their senses.
Responsibility of the employer for failure to provide leave to the employee
If it is established that the boss did not have the right to do so, he faces liability under Article 5.27 of the Code of Administrative Offences. For organizations this is a fine of up to fifty thousand rubles.
The main thing in such things is to know your rights and responsibilities. This applies to both entrepreneurs and employees. All misunderstandings come from ignorance and from the fact that someone uses it for their own purposes
When considering whether an employer can refuse leave, it is important to consider the presence (or absence) of extraordinary circumstances. They mean conditions that pose a threat to downtime in production or other activities. One of these circumstances is when an employee goes into sick leave(Article 124 of the Labor Code of the Russian Federation), as a result of which the work team cannot cope with the workload.
It is important that the procedure for refusing (or rather, transferring) leave on the initiative of management must be properly formalized:
- Changing the vacation schedule. It is compiled and approved by the employer annually, but adjustments are possible throughout the calendar year.
- Issuance of an order by management. It contains information about the transfer of annual paid leave for one or more employees.
- Obtaining written consent from the employee. It is compiled in free form and submitted to the personnel department.
Other grounds for transferring annually granted leave include the performance of government duties with the provided exemption from performing a labor function; other cases stipulated by labor legislation or legal regulations of a specific organization or enterprise.
Categories of employees who cannot be refused
Postponement of vacation to the next year is not allowed more than once in a row. If last year an employee did not take the required rest for legal reasons(to maintain the normal course of business legal entity or individual entrepreneur), then next year a repeated transfer is not possible. Even such an employee’s consent in writing is not an exception.
An employer's refusal to grant leave is impossible for the following categories of workers:
- Pregnant women, persons who have adopted babies under 3 months of age;
- Employees carrying out labor function in harmful (dangerous) conditions;
- Persons under the age of majority.
It is important that the listed groups of workers are assigned the right to receive leave outside the drawn up and approved schedule. The employer does not have the right to refuse to consider and sign an application for additional leave submitted by the above categories of employees.
Management refusal to go on vacation
A refusal to grant leave to an employee may be made when he submits an application for:
- Weekends “at your own expense” (another name for this type of leave is administrative; you can read more about it);
- Paid leave provided outside of the schedule approved by management;
- Vacation followed by dismissal.
Appealing an illegal decision
If the employer refuses to provide leave, and the employee is convinced that such a decision is unfounded, he has the right to appeal the actions of management to the Labor Inspectorate.
Appeal procedure:
- Drawing up 2 applications requesting leave.
- Sending one letter to the employer ( by registered mail so that the notice remains), transfer of the second application to the Labor Inspectorate.
- Making a photocopy of the approved vacation schedule and sending it to the Labor Inspectorate inspector.
In 70% of cases the case is resolved pre-trial. If the employee believes that the person monitoring the execution labor legislation the body has not taken the necessary actions to protect his rights, he has the opportunity to go to court to resolve the conflict.
Employee refusal to go on vacation
To answer whether an employee can refuse leave, you need to make sure whether the employer has met the following conditions:
- Timely and correct accrual of vacation funds;
- The employee receives 14 days notice of the start of vacation.
If these points are violated, the employee may refuse to go on vacation. He submits a corresponding application to management, on the basis of which the time for its submission is postponed.
Art. 126 of the Labor Code of the Russian Federation establishes that when annual paid leave is transferred to the next year, the employer pays monetary compensation. It is due for that part of the vacation that exceeds 28 calendar days (the minimum duration of vacation established by federal law).
If you need additional tips— ask your questions in the comments to the article
No one is insured against force majeure, including the head of an enterprise. And it often happens that a vacation planned several months ago needs to be rescheduled.
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Is this possible by law, how to arrange everything correctly and what nuances should you know and remember?
Transferring leave due to production needs is not a rare phenomenon in enterprises and organizations.
Although vacation schedules are drawn up a year in advance - to be precise, no later than two weeks before the start of the new calendar year, that is, before January 1 - after agreement with management, the trade union and the team, emergency circumstances often arise when they changes need to be made.
In this case, the initiator can be both the employer and his subordinate.
What does the law say?
According to the Labor Code Russian Federation, the transfer of leave at the initiative of the employer or its extension can be carried out under Articles 124 and 125 of this legislation, but only with the consent of the employee and in the presence of official documents.
They are:
- letters of offer to the employee to reschedule vacation;
- an order from the institution to amend the previously drawn up vacation schedule;
- employee statement.
In each individual case, additional certificates and documents may be required confirming the employee’s disability, difficult working conditions, minor age, etc.
The same article of the Russian Labor Code lists the main and common reasons that may become the basis for adjusting the vacation schedule.
Reasons
For what reasons may it be necessary to postpone legal and planned vacation?
These include the following:
- If the employee is on official leave while performing government duties, which involves official release from work.
- Business trip: the employer urgently needs to send an employee on a business trip, in which no one else, due to competence or authority, can replace him.
- If there is a need for the presence of this particular employee at the workplace due to the specifics of the organization’s activities, tax or audit and other special circumstances.
An employee can be recalled from vacation if his absence causes harm to the enterprise or organization, but only with his consent.
Usually, the employer and employee agree among themselves, the employee writes a statement on his own behalf that he wants to reschedule the vacation to another time, and the boss signs it.
Then the rescheduling occurs automatically. But it is still necessary to issue an official order in case of an audit.
In what cases is this not possible?
Transfer of annual next vacation not possible if:
- the employee belongs to one of the categories of employees who have the right to leave out of turn and can choose the start date: pregnant and lactating women, mothers raising children under 3 years of age, husbands whose wives are pregnant or on maternity leave, disabled people various degrees, veterans, etc.;
- if the employee has not reached the age of majority, that is, 18 years old;
- If work activity associated with exposure to life-threatening and harmful conditions.
How is the transfer of leave due to production needs processed?
Drawing up an order
The order is drawn up so that appropriate changes are officially made.
The order is written on behalf of the director. It must clearly indicate the reasons why there is a need to postpone the vacation, and instructions must be given to the personnel department employees to make changes to the organization’s vacation schedule and other related documentation. The period for which vacation is postponed may not be indicated.
The order is signed by the director of the organization and the chief legal department organizations.
The employee must be familiar with it (which is also indicated in the order and certified by the employee’s signature) and other persons directly related to the change in schedule - for example, personnel department employees.
Sample order Notification
IN Labor Code Russia does not clearly indicate the requirements for the execution of any of the documents related to the transfer or extension of vacation.
All papers are drawn up in any form.
You just need to adhere to the standard details of the application and be sure to certify everything with signatures.
Employee notification Is an employee application required?
An application from the employee is required if the transfer of leave is to be officially carried out according to all the rules.
It is drawn up in any form: in the “header” the position of the director, his last name and initials, the position, last name and initials of the employee are indicated, the application itself states the date to which the vacation will be transferred, and the employee’s consent to such a transfer.
At the bottom is the date the application was written and the employee’s signature.
Employee statement A sample document can be downloaded here:
How is the transfer date determined?
The Labor Code of the Russian Federation does not establish any clear requirements for determining new terms and dates.
But at the same time, it is impossible to transfer vacation for a period of more than one year - the employee must use all the days allotted to him within 12 months from the date of transfer or termination of vacation.
The employee has the right to choose the time of his new vacation.
As for vacation pay, there is such a small nuance: payments are calculated based on the employee’s average earnings, but at the same time wages are not considered.
Thus, if an employee received vacation money and went on vacation, but “didn’t finish” it because he was called to work by his superiors, he does not return the vacation money - according to the law, the employer does not have the right to withdraw it.
For hours and days worked during vacation, the employee’s salary is calculated as usual, regardless of whether he received vacation money or not. The recalculation will be carried out during the accrual of vacation pay next year, if the employee does not agree to voluntarily return them to the cash desk.
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