Trud-Center

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

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

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

According to part one of Art. 123 of the Labor Code of the Russian Federation, the priority for granting paid vacations is determined annually in accordance with the vacation schedule approved by the employer, taking into account the opinion of the elected body of the primary trade union organization no later than 2 weeks before the start of the calendar year.

Part two of the same norm stipulates that the vacation schedule is mandatory for both the employer and the employee.

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Certain categories of employees, in cases provided for by the Labor Code of the Russian Federation and other federal laws, are granted annual paid leave at their request at a time convenient for them (part four of Article 123 of the Labor Code of the Russian Federation).

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

temporary disability of the employee;

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

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

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

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

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

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

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

Expert opinion

Novikov Oleg Tarasovich

Legal consultant with 7 years of experience. Specializes in criminal law. Member of the Bar Association.

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

This is important to know: How many days before the vacation is the application written?

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

Answer prepared by: Expert of the Legal Consulting Service GARANT Natalya Panova

Response quality control: Reviewer of the Legal Consulting Service GARANT Voronova Elena

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.

When is it possible to postpone vacation at the initiative of the employer?

The priority for submitting vacations in an organization is established by a vacation schedule - a mandatory LNA for all enterprises, regardless of the field of activity and legal status of the business (Article 123 of the Labor Code). Postponement of the next vacation at the initiative of the employer is allowed due to exceptional reasons affecting the work of the company. In this case, the specialist’s consent is required, and he must take his legal vacation no later than the next 12 months.

Note! Answer to a common question: Can an employer reschedule leave due to business needs? is negatively commented on by numerous explanations from officials and does not allow unilateral changes in vacation terms without the consent of the person, as well as the consolidation of unfavorable worsening working conditions in the LNA organization.

Transfer dates are recorded in personnel documents. Is an order to postpone vacation necessary or is verbal notification to the employee sufficient? To confirm the mutual consent of the parties, it is necessary to correctly draw up all the required documents. You definitely need not only an order to postpone the vacation, sample below, but also a number of other forms - a memo, a report, as well as the consent of the specialist himself. Let us examine the features of compiling forms in more detail.

How to transfer leave due to production needs?

In order for an employee’s vacation to be postponed to another period, or to be changed, or even to be withdrawn from the EOO, in addition to the desire and consent of the parties, the following formal actions must be completed.

The company management or the human resources department prepares an order to change the vacation schedule, which is approved annually. This order is signed by the manager, entered into the appropriate register or book of orders, and brought to the attention of each employee personally against signature for familiarization.

Company order

If an employee is recalled from leave, he or she must be given formal notice in writing. Those. A simple phone call is not enough for this. A written notice must be prepared and given to the employee being recalled from the EOO.

Written Notice

If a production need arises, then an employee’s application to transfer his SOO is, as a rule, not required. Everything is decided by a unilateral order from the organization’s management and the employee’s consent is not necessary.

However, there are cases when an employee may ask to change the vacation period or add the unused part (calendar days) to another vacation period for the next year. The application is written to the director of the company or organization.

Employee statement

In addition to these three important points accompanying the formal side of the transfer of SOO for production reasons, there are two more issues that you need to know about.

The first point is the deadline or date for rescheduling the vacation. Nowhere is there any indication of what the appointment date should be. Usually the employee chooses the best option for him. Again, everything is decided when discussing such issues with the employer.

The second point is related to the payment of vacation pay. For example, an employee, going on vacation, received a full cash benefit for the entire period of the Unified Society. If the employer called the employee back from vacation, i.e. he actually didn’t finish it, then should he return the amount that is associated with the unused days of the EOO? The law in this regard clearly states that vacation money is not a refundable cash benefit and if the vacation (or part thereof) is unused, it is not returned by the employee.

How to issue an order to transfer annual leave

Preparing documents for transfer includes the following steps:

Notification by the employer of the employee of the postponement of vacation is made after the justification of the reasons for changing the temporary terms of the vacation is completed. At the same time, stat. 124 of the Labor Code prohibits the failure to provide legal rest to personnel for two consecutive years for any reason.
Obtaining a specialist’s consent to the changes taking place requires a written document in any form; an oral response alone is not enough, as it is fraught with possible labor disputes.
Amendments to the vacation schedule are made in a way convenient for the employer to adjust the current priority of vacations for the company as a whole and individual employees in particular. For example, you can make adjustments to columns 8-9 of the approved schedule or publish additions to the main document.
Entering information into time sheets and personal cards.

The HR document flow does not contain a standard sample for filling out an order to transfer annual leave. In general, the form, like the application, is formed in any form, with the obligatory indication of the following information - details of the enterprise and the employee himself, the reason for the transfer, the start/end dates of the change in deadlines, the approving visa of the manager and the personal signature of a specialist confirming the fact familiarization with the order.

This is important to know: Application for replacement during vacation: sample 2021

Like the order to postpone leave for family reasons, the document form includes data such as:

Employer's name.
Heading - the name of the form.
Number and date of registration of the order - where to register an order to postpone vacation is not regulated by labor standards; you can draw up a special personnel journal.
A valid reason that is the basis for the transfer.
New vacation dates or a note that the dates will be set later in accordance with the employee’s application.
Signatures of the manager and the employee himself - if there is no opportunity to convey the changes to the specialist at the time of drawing up the document, a special note is made.

Vacation registration

Rest time rescheduled at the request of the worker is formalized as follows:

The transfer date must be discussed with the administration in advance. You cannot go on vacation without such approval. This will be regarded as absenteeism with possible subsequent dismissal.
The employee submits an application addressed to his superiors. The document is written in free form. It simply indicates a request to reschedule your rest time.
If management meets the employee halfway, an official order is drawn up.
In the process of issuing an order, holidays, time sheets and a special section in the employee’s personal card are taken into account.

After the approved transfer, there is no need to approve the vacation schedule a second time. The only thing you need to do is get the written consent of your colleagues. The transfer of rest time automatically affects the interests of some employees. It is from them that you need to obtain a receipt for familiarization with the changes.

The total number of transfers in one year is not established by the Labor Code and is not otherwise regulated. Transferring is allowed more than once. The main thing is not to resort to this for two years in a row.

First, the employee needs to write a statement in any form addressed to the head of the organization.

The main thing is to indicate the start date of the rest, even if the employee still doubts it. Also, if necessary, you will need to write the reason for choosing this particular date.

The application should be registered in the application register and signed by the head of the department and the head of the company.

The employer will issue and sign an order to postpone the vacation.

In accordance with Article 123 of the Labor Code of the Russian Federation, the employee must familiarize himself with it at least two weeks before the start of the vacation and sign it.

Read more about the order to extend or transfer leave to another period, for example in connection with sick leave, here.

Article 123. The order of granting annual paid leave The order of granting paid leave 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 adoption 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 other federal laws, are granted annual paid leave at their request at a time convenient for them. At the request of the husband, he is granted annual leave while his wife is on maternity leave, regardless of the time of his continuous work with this employer.

These documents must be recorded in the appropriate journals, and changes must be made to the vacation schedule.

All these formalities must be completed in case the company is audited: orders and a modified schedule will protect you from a fine.

To get everything done on time, the employee must hurry up and write the application as early as possible.

If an employee postpones his vacation to a later date, he must notify his superiors about this before the first day of his vacation specified in the schedule.

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Postponement of leave before maternity leave

At the request of a pregnant employee, the rest period can be postponed before or immediately after maternity leave, regardless of the length of work experience with a given employer. To complete the application, the HR officer will need a written application from the woman. An arbitrary sample order for postponing leave before maternity leave is below.

Limited Liability Company "Intech"

Based on a written statement drawn up by accountant Chernova E.A. dated 02/01/2017 on the transfer of part of the regular annual leave:

Transfer part of the annual paid leave of 10 (ten) calendar days due for the period from 05/22/2017 to 05/31/17 to the period from 03/13/2017 to 03/22/17.
Head of the HR Department A.V. Voronina make appropriate changes to the vacation schedule for 2021.
Accountant V.O. Kolomiytseva recalculate vacation pay for Chernova E.A.
I reserve control over this order.

General Director Bulanov Bulanov A.S.

Reason: Statement of Chernova E.A. from 01.02.17

The order has been reviewed by _______________/Chernova E.A./ _______________

Conclusion - in this article we examined whether an employer has the right to postpone an employee’s vacation in accordance with the legislation of the Russian Federation. But can an employer refuse to postpone vacation at the initiative of a specialist? The answer to this question depends on the specifics of the specific situation: in short, yes, there is such a possibility when the vacation schedule has already been approved, and the reason is recognized by the company administration as disrespectful.

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What leave can be transferred?

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

Let's consider which vacation can be rescheduled:

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

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

Sample applications for rescheduling vacation - an example of an order for rescheduling vacation or part of it

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

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

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

Employer initiative and employee rights

The possibility of transferring vacation, based on the need for efficient operation of the company and production as a whole, is determined by the employer. Article 124 of the Labor Code of the Russian Federation names three mandatory points for such a transfer:

emergency, exceptional situation;
the absence of a certain employee can have negative consequences for the organization, individual entrepreneur;
employee consent.

Please note that the legislation does not contain a list of exceptional situations. In practice, they arise when:

the company is audited externally, and the employee is responsible for this area of work;
it is necessary to submit reports within a certain period;
there is an urgent business trip ahead;
the employee must replace an absent manager (for example, due to illness);
New equipment and technology arrives, and the need arises to improve its operation;
in any other cases when the immediate presence of the employee is necessary.

Article 124 of the Labor Code of the Russian Federation establishes a ban on any postponement of vacation:

minors;
workers of harmful, hazardous areas and industries.

Paid leave cannot be transferred for two years in a row; the transferred leave must be provided to the employee within 12 months.

For violation of employee rights, Article 5.27.1 clause 1 of the Code of Administrative Offenses establishes penalties:

for the management of the organization and individual entrepreneurs - 2-5 thousand rubles.

During the first inspection, regulatory authorities may limit themselves to a warning to the administration (IP).

An important question: can the administration force an employee to postpone vacation based on production needs. The answer is negative. Postponing vacation without the employee’s consent is a violation.

By the way! The transfer of vacation must be recorded in the vacation schedule.

How to issue an order to transfer annual leave

Preparing documents for transfer includes the following steps:

Notification by the employer of the employee of the postponement of vacation is made after the justification of the reasons for changing the temporary terms of the vacation is completed. At the same time, stat. 124 of the Labor Code prohibits the failure to provide legal rest to personnel for two consecutive years for any reason.
Obtaining a specialist’s consent to the changes taking place requires a written document in any form; an oral response alone is not enough, as it is fraught with possible labor disputes.
Amendments to the vacation schedule are made in a way convenient for the employer to adjust the current priority of vacations for the company as a whole and individual employees in particular. For example, you can make adjustments to columns 8-9 of the approved schedule or publish additions to the main document.
Entering information into time sheets and personal cards.

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Like the order to postpone leave for family reasons, the document form includes data such as:

Employer's name.
Heading - the name of the form.
Number and date of registration of the order - where to register an order to postpone vacation is not regulated by labor standards; you can draw up a special personnel journal.
A valid reason that is the basis for the transfer.
New vacation dates or a note that the dates will be set later in accordance with the employee’s application.
Signatures of the manager and the employee himself - if there is no opportunity to convey the changes to the specialist at the time of drawing up the document, a special note is made.

Initiators of vacation rescheduling and their motivation

The time of annual leave for each employee is planned by reflecting the period (or periods, if the leave is divided into parts) in which it will be taken in the leave schedule. Such a schedule is drawn up and approved before the start of the year of vacation use, and, of course, by the time the planned vacation begins, both the employee and the employer may have circumstances that make it inconvenient to provide vacation at the time specified in the schedule.

Such circumstances may be:

for the employee - reasons of a personal nature, including those related to family circumstances;
for the employer - production necessity, i.e. a situation where the absence of an employee will affect the normal conduct of business activities (Article 124 of the Labor Code of the Russian Federation).

The issue of transferring vacation (both in terms of the possibility of carrying out this operation and in relation to the timing of the transfer) in such cases is resolved by mutual agreement of the parties.

However, there are also reasons obliging the employer to make a transfer (Article 124 of the Labor Code of the Russian Federation):

the occurrence of a temporary disability or the need to perform government duties in a vacationing employee;
Violations by the employer of the deadlines for warning about the start of vacation or payment of vacation pay - this obligation is implemented only if there is an application from the employee for a transfer.

Transfer of annual paid leave by the employer: is it legal?

The document that determines the time of going on vacation is the vacation schedule. It is drawn up by the employer at the beginning of the year, taking into account the wishes of the employees and is provided to each of them against signature. It is stipulated that if an employee signs opposite his name on the schedule, he agrees with the period of leave. But sometimes it may be necessary for a person to be present at the workplace during his vacation. In labor law, this is called the transfer of leave due to production needs or at the initiative of the employer.

Art. 123 of the Labor Code allows for the possibility of transferring vacation to another time: “in exceptional cases, if the provision of vacation according to the schedule will adversely affect the course of the enterprise’s activities.” In this case, the law allows “shifting” vacation at the initiative of the employer, but only with the consent of the employee .

Registration of the procedure

To transfer leave due to production needs, 3 documents are prepared:

An official letter to an employee from the head of the organization or the head of the department with a proposal to postpone the vacation. The letter indicates the reason why changes are being made to the vacation schedule. An alternative to such a letter may be a memo, the content of which reflects the need for transfer.
Employee's application to postpone vacation.
An order to make amendments to the approved employee vacation schedule.

Documentation that is amended after the order is issued:

vacation schedule (a mark is placed in the last column explaining the reason for the changes);
the employee’s personal file (if there was already a record of vacation provision in it previously.