Does the employer have the right not to allow vacation, what to do?

Home / Labor Law / Vacation

Back

Published: 06/21/2016

Reading time: 5 min

6358

The Labor Code provides for the right of the employer to postpone the employee’s planned vacation to another period, if this is necessary to maintain the normal rhythm of the organization’s work (Article 124 of the Labor Code).

The main condition for the legality of the transfer is the employee’s consent to this in writing . Responsibility for refusing such an offer is not established by law, therefore, if it is important for an employee to go on vacation exactly during the planned period, then he may well refuse the employer.

Is it legal not to allow people to go on vacation as scheduled?
Who should not be given leave?
Reasons for refusal
What should an employee do if he is not allowed to go on vacation?

The employer does not allow vacation - what to do?

Let's take a closer look at what to do if you are not given leave. The work of the enterprise is permanent, and in certain circumstances a situation may arise that the employer refuses to grant leave to his employee or calls him back to work before it ends.

Then the employee will need to decide what he wants. In most cases, if the employee agrees, the vacation is transferred with the right to take it off at another time, and the employee continues to work.

The legislation provides for cases when the director has the right to involve them in work during vacation, but obtaining consent in this situation is not provided. However, such cases are extremely rare.

If the employee’s case does not fall under this category and he does not want to work during vacation, then a statement must be drawn up in the name of the manager, the content of which includes a reference that this period is drawn up according to the current schedule, which the employer must comply with.

Attention! If in this situation the administration does not meet the employee halfway and does not give him annual paid leave, he can file a complaint with the labor inspectorate or the prosecutor's office.

In addition, if leave must be granted as scheduled, the employee may not report to work during the specified period. He just needs to notify his superiors about this.

At the same time, the administration does not have the right to fire for absenteeism in this situation. In this situation, problems may arise with the transfer of vacation pay amounts. But this is also an offense on the part of the employer, so it will still be possible to file a complaint with the competent authorities.

Responsibility of the manager for failure to provide regular leave

In addition to unscheduled inspections, the employer faces real punishment for failure to provide leave.
This is especially true if this situation has been observed for several years in a row or concerns the most protected categories of workers. The employer faces administrative penalties in the form of a fine of up to 50,000 for a legal entity and 10,000 rubles for an official. If the violation occurs repeatedly, the company may be disqualified. This means a ban on business activity for a certain period of time.

As a result, the employer may refuse to provide leave in some situations. However, if there is a set schedule, then both parties are obliged to adhere to it. Violations of employee rights threaten the employer with lawsuits, inspections and fines.

Dear readers, the information in the article may be out of date, take advantage of a free consultation by calling: Moscow +7

, St. Petersburg
+7 (812) 425-62-38
, Regions
8800-350-97-52

In what cases can a boss refuse leave?

Employees often do not know whether the employer can deny paid or other leave. Let's take a closer look at cases where management may not provide an employee with rest.

No vacation schedule has been drawn up

The order of rest for employees is regulated by the vacation schedule, which is drawn up for the next year at the end of the current period. Its existence is mandatory for companies with at least one employee.

However, if it is not there, then obtaining the mandatory consent of the administration will be required to apply for a vacation. The exception is when the employee goes on vacation for the first time. Once he has completed his stipulated period of service, the employer will have to provide him with a rest period.

Trying to go on vacation outside of schedule

In order to take voluntary leave outside of the schedule (for example, in the summer), an employee must obtain consent from his employer. But the employer has the right to refuse this request.

Attention! And if this employee still ignores the ban, then his absence from work will be considered absenteeism, for which the administration can fire him.

No equivalent replacement (employee)

Continuity of the production process implies that a worker must be present at production every day. In these cases, a shift work schedule is drawn up.

However, due to the temporary absence of one employee, the employer will not be able to release another employee. But to do this, he must obtain written consent from his employee. The exception is for incidents that are catastrophic in nature.

Plan not completed

If the vacation schedule for a given year is approved, then it does not matter whether the employee fulfilled the plan or not. Once it is time to grant a period of rest according to the schedule, the leave must be granted.

An employer may threaten an employee that he will not allow him to go on vacation, but these are all words. To the question - does the employer have the right not to allow a person to go on vacation, there is only an answer - with the consent of the employee himself.

Important! The administration’s ban on receiving scheduled leave is considered illegal, and if a complaint is made to the competent authorities, the employee’s rights will be restored.

According to production needs

During the period of increased work, the employer tries not to provide employees with vacations, justifying this by production necessity.

The employee worked for less than six months

The Code establishes (Article 122) that an employee’s first right to labor leave arises after he has worked for at least 6 months at the enterprise. Those. the employer has the right, referring to the specified article of the Labor Code, to refuse to provide the employee with leave before the expiration of the specified period.

However, the same article does not prohibit providing a period of rest if the work experience at the enterprise is less than 6 months, but to do this by mutual agreement of both parties.

Attention! Thus, the employer can either refuse leave based on the Labor Code or provide it at will.

Compromise with the employer regarding vacation problems

When such a problem arises, in approximately 40% of cases the issue is resolved through a polite conversation with the director of the company or enterprise. You should never miss the opportunity to find a compromise so that leaving does not in any way disrupt the plans and affairs of the employer or employee and does not negatively affect the production process.

There are many cases where a certain loyalty of employees and their agreement to a small time shift were an important argument when deciding who to promote. Another option for such loyalty is the fact that an employee can undertake an obligation to perform urgent work during his vacation. In this situation, both parties show loyalty.

The situation will be much worse if an agreement cannot be reached and the boss does not sign the vacation application.

Here you will have to be guided by the norms of the Labor Code of the Russian Federation, which set out all the rights to annual rest.

Violation of the law regarding the provision of legal leave faces quite serious penalties. Up to 50 thousand rubles can be written off from the organization’s account, and the manager himself can be fined at least 5 thousand. Such penalties are provided for in Article 5.27 of the Labor Code “On Administrative Violations”. If this issue becomes acute enough, it is easier for the employer to let the person go than to pay a fine. Also, one of the common situations between an employer and an employee is the failure to issue a work book. This problem is also easily solved in the legal field.

Which categories of workers cannot be refused?

Pregnant woman before maternity leave

Article 260 of the Labor Code establishes that an employee has the right to take annual leave before maternity leave, after maternity leave, or after completing maternity leave. To exercise this right, a written application must be submitted to the employer.

The length of leave depends on whether the woman used her right to rest in the current year or not. If she has not yet been on vacation, or has not used it fully, then she is given a rest period equal to the remaining days.

Attention! The employer has the right to refuse leave if she has already used her right to rest in a given year, and her new working year has not yet begun.

For minor employees

Leave for an employee who has not yet reached 18 years of age must be granted outside the schedule on any date desired by the employee. In addition, the rest period is not 28 days, as for ordinary categories of workers, but 31 calendar days.

Thus, a minor is not subject to the rule of granting leave only after 6 months of work - he can write an application after a month of work and take the entire period at once, and the employer has no right to refuse him. But if he does not work the entire year, then upon dismissal from his salary it will be necessary to withhold excess amounts of vacation pay (but not more than 20% of the total payment).

Wife/husband of military personnel

The Labor Code, as well as the current law, establish that the second military spouse can take leave at the same time as the other spouse. It does not take into account whether this period of rest is provided according to the schedule or outside of it.

To receive a vacation, you must write an application to transfer the vacation period to another time and attach an available document confirming the benefit. The employer has no right to refuse such a transfer.

Attention! In addition, the second spouse has the opportunity to take advantage of the privilege and equalize the vacation period with the first spouse (in the case when he has a longer vacation period). However, additional days are provided without pay in the status of vacation at your own expense.

Single mother

The Labor Code or other legislative documents do not provide for priority rights to leave for single mothers. Thus, they must go on vacation along with other employees and according to the established schedule.

However, Art. 263 of the Labor Code of the Russian Federation establishes that if this is established by a collective agreement, then a single mother should be given a vacation period without pay for 14 days at any time convenient for her. In this case, this vacation can be provided in full or in parts.

Attention! To obtain this right, the mother must fill out an application with a request and attach documents confirming her status as a single mother.

Parents of a disabled child

This category of employees retains all standard leave rights. In addition, in 2015 an amendment was made to the Labor Code of the Russian Federation (Article 262.1). She established that such workers can receive a period of rest at their request at any time they need. They cannot be denied the right to receive paid leave.

This rule applies not only to parents, but also to guardians, adoptive parents, and guarantors. It is valid until the child turns 18 years old.

Mandatory holiday, but no pay

Some employees are entitled to so-called leave at their own expense. Some categories of employees are entitled to such leave by law. Administrative leave must be mandatory for them and granted without pay. Also see “Administrative leave: how to apply “at your own expense”.

Legal norms that consolidate this right and outline the range of categories enjoying such a privilege are scattered throughout the Labor Code of the Russian Federation and special legislative acts. For clarity, we have collected the most important information in the following table.

Employee categories	Vacation options	The legislative framework
Working pensioner (old age pension)	Up to 14 calendar days every year	Art. 128 Labor Code of the Russian Federation
Employee with a disability	60 calendar days per year
A subordinate who: • got married; • became a father/mother; • lost a close family member.	Maximum 5 days per year per occasion
War disabled	Up to 60 calendar days annually	Law No. 5-FZ of January 12, 1995, sub. 17 clause 1 art. 14 and clause 11 clause 1 art. 16
Combat veteran	35 calendar days during the year
Outside police officer, people's vigilante	Maximum 10 days annually	Law No. 44-FZ of April 2, 2014, Part 3 of Art. 26
Full holder of the Order of Labor Glory, Hero of Socialist Labor	Three weeks annually	Law No. 5-FZ of 01/09/1997, Part 2 of Art. 6
Heroes of Russia, Soviet Union	Up to three weeks throughout the year	Law of the Russian Federation No. 4301-1 of January 15, 1993, paragraph 3 of Art. 8

Please note: the data in the table is not exhaustive. It outlines the most common cases of applying for leave, which may not be paid. At the same time, from this table you can understand which employees the employer cannot refuse leave without pay. The employer cannot refuse to place such employees on vacation.

What to do if they don't let you go?

Application to the labor inspectorate

The Labor Inspectorate is a government agency that is charged with monitoring compliance with the provisions of labor legislation. If an employee’s rights are violated and he does not know what to do if he is not given leave according to a pre-approved schedule, he can file a statement about this.

The employee must submit a complaint in writing in free form. The text of the document must describe in detail the violation committed, as well as indicate what result you want to achieve. The application can be submitted to the inspection in person, or sent by mail.

The law prohibits submitting anonymous appeals. If the document does not contain information about its originator (full name, address), then such an application will not be considered.

Attention! You can also report a violation via the Internet using the website Onlineinspektsiya.rf. An electronic signature is not required for this.

After considering the application, the government agency must conduct an unscheduled inspection of a possible violation, and if detected, bring the organization to administrative responsibility on the basis of the Code of Administrative Offenses.

Radical methods of getting vacation

The most radical way to get a leave of absence is to contact the regulatory authorities - the prosecutor's office or the court. The basis for such action may be serious violations of labor laws. For example, if an employee has not been allowed to go on vacation for the last two years.

Based on the application submitted to the prosecutor's office, an extraordinary inspection of the organization must be carried out. If its results reveal violations, a fine may be issued for violating the Code of Administrative Offenses, and in some cases, materials may be transferred to initiate a criminal case.

Attention! As a rule, one call to the prosecutor’s office is enough for the employer to have all violations eliminated.

Claim against employer

The last authority an employee can turn to to restore his rights is the court. It is important to remember that there is a statute of limitations. For general disorders it is defined as 3 months. The court may restore the deadline provided that it was missed for valid reasons (they must be documented).

A trial is necessary if an employee wants to receive monetary compensation (including moral damages) from the employer.

Attention! If the proceedings concern labor relations, the plaintiff (employee) is exempt from paying state duty.

Contacting the inspectorate if a vacation is prohibited

If a difficult situation with leave arises, you can proceed to more drastic measures, in particular, contact the special State Labor Inspectorate with a written complaint against the employer. As a rule, after such a statement, a commission will visit the enterprise. The inspector will check the legality of compliance with the norms for granting leave in relation not only to one applicant, but also to all employees of the company.

The application is written in any written form with the most detailed description of the essence of the problem. It is sent by mail or handed to the inspector.

Based on the results of the inspection, the manager may be held accountable under Article 5.27 of the Labor Code of the Russian Federation, thereby obliging him to provide employees with leave that will fully comply with the approved schedule.

Special cases

Unofficial employment

An employee may remain working during the vacation period in his organization, but this work will not be formalized. As in other cases of work without registration, the employer will not withhold personal income tax from the payment for this work and will not make contributions to social funds.

With this form of labor relations, both the employee and the employer are at risk. In the first case, the employer may not pay the amount agreed with the employee. At the same time, defending your rights will be problematic, since there will be no documentary evidence.

An employer, if it turns out that he is carrying out labor activities without registration, will be held accountable in accordance with the Code of Administrative Offenses. If significant violations in this area are detected at the enterprise, then a criminal case may be opened against the manager for non-payment of taxes.

Work under a contract

Current legislation does not prohibit an employee from entering into a contract while on leave. In this case, it is allowed to do this both with a third-party organization and with your own.

This step is explained by the fact that while on vacation the employee has the right to manage his time as he pleases. In particular, he has the right to enter into a GPC agreement for this period.

Current legislation does not prohibit parties with whom a formalized employment relationship already exists from entering into civil relations.

Attention! At the same time, it is very important that the executed civil contract does not contain any signs of an employment contract. Those. the task that the employee received according to it should not coincide with his main responsibilities under the employment agreement.

Can vacation pay be not accrued to a resigning employee?

In case of dismissal for any reason provided for by labor legislation, the employer is obliged to make a final settlement with the employee (Article 140 of the Labor Code of the Russian Federation). In addition to the salary for the time worked, the calculation includes compensation for vacation days not used at the time of termination of the employment agreement.

Labor Code of the Russian Federation Article 140. Calculation terms upon dismissal

Upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day the employee is dismissed. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment. In the event of a dispute about the amount of amounts due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by him within the period specified in this article.

The only exception to this rule is the situation when, at the time of dismissal, the employee has no remaining unused rest days. For example, if he takes another vacation right before his dismissal.

If, by the time the employment contract is terminated, the employee has used in advance the days of rest due to him in the year of dismissal, the employer has the right to withhold from him part of the previously paid vacation pay.

We suggest that you familiarize yourself with information about whether a bonus is paid after the dismissal of an employee and how to calculate the average daily earnings for compensation upon termination of an employment contract.