An irreplaceable employee: how to properly file a recall from leave due to business needs?

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Published: 06/10/2016

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The Labor Code provides for employers the opportunity to call an employee on vacation to the workplace (Article 125 of the Labor Code). But this article does not contain an exact list of situations when such a recall from vacation is possible. Such a list is included in Article 79 of the Labor Code, but it applies only to recall in emergency situations (recall from leave due to production needs). Therefore, heads of organizations and enterprises more often refer to production necessity. This reason is indicated in the documents drawn up.

However, representatives of the labor inspectorate may have a complaint about such an unclear formulation of the reasons. In this regard, it is recommended to enter the exact reason why the enterprise or organization needs the presence of a certain employee (he is the one who can perform the actions prescribed by job descriptions). For example, management may need an employee in the event of an unscheduled inspection or in the event of dismissal of an employee who replaced him during the vacation period.

• Reasons for revocation and its possibility
• Is it possible to recall without the employee's consent?
• Submitting a review How to contact an employee

Possible reasons

It is worth noting that the Labor Code of the Russian Federation provides for an official call of an employee from annual leave. As a rule, under such circumstances, personnel officers call the reason a sudden production need, but this is not entirely correct.

There is a certain list according to which you can actually call an employee to work during rest:

• an inspection that was not previously planned;
• accident and other emergency situations;
• dismissal of a person who was officially appointed to replace him;
• a specific task that can only be solved by an employee who is on vacation.

Of course, this list is far from complete. There are actually many more reasons why it is necessary to recall from leave due to operational necessity. However, in any situation it is important to describe the problem accurately and in detail. If this is not done, then during the next personnel check the supervisory authority may have serious doubts about the legality of the actions of the organization’s management.

How to find an employee?

When the question of a call from vacation arises, sometimes the personnel service is faced with the problem of finding an employee, because he does not necessarily have to be at home during the vacation period. In addition, the law does not say that an employee must warn his superiors that he plans to leave the city.

To do this, the company management must introduce a certain document of a recommendatory nature. It will record all the information about where the employee may be, as well as his contact information, by which he can be contacted in emergency situations, and when a call from vacation is necessary.

Once the HR employee has contacted the required employee and received consent, you can begin documenting the call.

Making a legal call

It is worth noting that there is not a single document that clearly states how to call an employee from his legal rest. This is not described in the Labor Code either. A call from vacation can be carried out according to certain rules:

1. If the employee is assigned to any department, then the head of this department must write a special memo addressed to the director, which will indicate a clear reason for the call.
2. After this, a formal notice is issued. It is necessary to leave a place where the employee must sign. It will mean acceptance of the call. It is worth noting that no one can force an employee to take leave from vacation. He may refuse management's offer.

But it’s not enough to know how to write a vacation review. It is also important to formulate the order correctly. A correctly executed order is the main reason why an employee will have to appear at work during his legal rest.

When can an employer ignore an employee's wishes?

However, the legislator has provided for situations in which an employee is obliged to return to perform official duties, regardless of the circumstances.

For example, if a situation has arisen at the enterprise that needs to be eliminated, or an emergency that could lead to serious consequences, and other employees are absent, the specialist cannot refuse to return.

An employee can only refuse in the event of serious illness or dismissal.

Watch the video. Feedback from an employee on vacation:

Correct drafting of the order

So, the order is drawn up directly by the HR department employee and approved by the director of the organization. It must be recalled that the order is the main document, so the answer to the question of whether it is possible to recall from vacation without this paper is obvious.

The document must indicate the following:

• The reason why an employee needs to leave his legal rest and go to work.
• The date when he needs to appear at work.
• The period during which the work will take place.
• Options for where the rest of your vacation will be spent. It is possible that the employee will immediately take the remaining days off.
• Instructions for accounting employees (the employee needs to recalculate wages and vacation payments).

At the same time, in the order for recall from leave for operational reasons, it is possible to indicate that the employee does not object to such a decision, although this is not necessary. If the employee’s consent was drawn up in a separate document, then it must be attached to the order as an appendix.

FAQ

Is this possible for civil servants and in the municipal service?

All provisions of the Labor Code apply equally to both budgetary organizations and private companies.

Is recall legal for someone working as an external part-time worker?

An external part-time worker exercises his right to leave at the same time when an order for leave at his main place of work is signed.

To confirm his benefits, he brings the document to the accounting department. Accordingly, only the main employer can recall him from vacation.

When can you offer time off for days worked during the vacation period?

Time off is used within 12 months after work on the day the employee is supposed to rest. Otherwise, it “burns out”.

The HR officer’s task after time off is to reconcile the time off and put an 8-hour workday on the employee’s timesheet for payment in the accounting department.

Attention!

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Vacation

How can you use the remaining days?

The employee returned to work temporarily, but what about those days that remained untouched? Is it possible to take them off later or receive compensation, since the payment for the vacation has already passed?

In this case, the Labor Code of the Russian Federation offers several options:

• if work due to production needs has been completed, and there are still free days left, then the employee has the right to extend his vacation and simply take off his free time;
• if the employee does not want to take the remaining time off, then he has the right to take these days at any time convenient for him until the end of the calendar year;
• you can also add the remaining days to the vacation of the future period and take them off next year;
• and the last option is to receive monetary compensation; this is only possible if the employee has already taken his required 28 days off, and the call only applies to additional days.

How many days can I call an employee?

In fact, there are no clear time limits. An employee can remain in his place as long as there is a production need. However, it is important to remember that the timing must be planned in advance. Moreover, the employee must be familiarized with them, and he must agree with the deadlines.

You can also call an employee for exactly one day, but for this you also need to issue an order. In addition, even if a person is needed at the workplace for a very short time, for example, for 2 hours, an order must also be issued to recall the employee from vacation. At the same time, it is necessary to indicate not 2 hours, but a full working day, which a person can then use at his own discretion.

Work during vacation and GPC agreement

You can offer an employee to earn extra money under a civil law agreement (GPC). Then he will receive both vacation pay for his main position and remuneration for additional services.

When drawing up a civil contract, it should be taken into account that the activity should not duplicate the direct responsibilities of the employee and be subject to the internal regulations of the enterprise. Otherwise, we can talk about masking a civil employment contract.

Example

The salesman Elena was called to the store because her partner was ill. The woman had already received vacation pay and agreed on the condition that she would also be paid for the days she worked. They entered into a civil contract. But since she was fulfilling her direct duties, the contracts were disguised. According to the GPC, Elena could be attracted, but not to her workplace, but, for example, to repair walls or clean the territory.

If the regulatory authorities discover the substitution of contracts, they will fine officials and entrepreneurs 1-5 thousand, and the company - 30-50 thousand rubles (Article 5.27 of the Administrative Code).

Distinctive features of contracts:

During vacation, similar functionality can be performed in a third-party organization under a GPC contract. And if in your own, then doing completely different work. In this case, payment will be in the amount determined by the agreement. And at the main place of employment, vacation pay has already been paid.

When is calling from vacation not possible?

There are restrictions in the Labor Code of the Russian Federation that may make it impossible to call back from vacation. The employer must clearly know the categories of citizens who cannot even be asked to go to work during their vacation. These categories include:

• workers whose activities are directly related to hazardous or harmful conditions;
• employees whose age does not exceed 18 years;
• pregnant women.

All these citizens can relax peacefully during their vacation and not agree to go to work. It is worth remembering that no leader can force you to interrupt your legal rest.

Could this be possible?

Yes, it is possible to recall an employee from vacation . This right is granted to the employer by Art. 125 of the Labor Code of the Russian Federation, however, with the reservation of obtaining the employee’s consent. If such consent is not obtained, the employer has no right to forcibly recall the employee and force him to perform his job duties. We will talk in more detail about whether an employee can be recalled without the consent of the employee in the corresponding section.

In addition, this article defines a list of persons who cannot be recalled at all. Such persons include:

• minors;
• pregnant women;
• employed in work with harmful and (or) dangerous working conditions.

The above article regulates the procedure for recall when an employee is on annual paid leave. If we are talking about vacation at your own expense, then it is necessary to take into account that such vacation can be divided into two types:

1. provided at the discretion of the employer;
2. provided by the employer without fail.

The latter is clearly regulated by Article 128 of the Labor Code of the Russian Federation. The categories of persons, according to this article, and the duration of such leave can be presented in table form:

The above list is not exhaustive . Article 128 of the Labor Code of the Russian Federation also indicates the presence of other cases established by law or a collective agreement in which the provision of leave without pay is mandatory. It seems that in such cases the employee’s recall from such leave is unacceptable, since providing it is the employer’s responsibility.

In other cases, it is the employer’s right to provide leave without pay, which means he has the right to reduce it by recalling the employee from such leave.

Employee refusal

What to do if an employee does not agree to come to work during his vacation? For clarity, it is necessary to look at an example.

So, the employee is on vacation, and the vacation payment has already been paid, but force majeure circumstances have arisen, so management issues an order to call the employee. However, the citizen ignored this notice and did not go to work. Is it possible to make such a decision for absenteeism and how to punish the employee in this situation?

Not really. Any fines and deductions in this case will be illegal, since the employee’s recall from vacation can only be done with his consent. That is, the notification of the summons is only advisory in nature, and the citizen can agree with this proposal or refuse.

If the manager decides to punish the employee or even fire him, then the person can safely contact the labor inspectorate. He will definitely be reinstated to his position, and, in addition, he has a chance to receive compensation for moral damage caused.

Exception categories

There are certain types of employees whose recall from vacation is prohibited by law. Thus, even with their consent, pregnant women, workers who have not reached the age of majority, or those engaged in dangerous and life-threatening work cannot be recalled from leave.

Important: An employee’s refusal to go to work before the end of the vacation cannot be regarded by management as a violation of labor laws and does not entail disciplinary action against him (for example, dismissal due to absenteeism, which many unscrupulous employers fear).

Recalculation of vacation pay

Vacation payments, like regular wages, are subject to taxation. In addition, deductions are also sent from these payments to various funds.

According to the Labor Code of the Russian Federation, all accruals must be issued to the employee 3 days before the start of his legal rest. When a sudden recall from vacation occurs, vacation payments must be recalculated.

It is important to remember that recalculated funds can only be deducted from future wages in equal parts. Forbidden:

• demand the employee to return the money;
• withhold the entire amount from wages for the period worked.

It is also impossible not to recalculate vacation pay and take this amount into account towards future wages. This is prohibited because:

• The employer cannot know exactly the period when the employee will decide to use the rest of the vacation.
• For the remaining vacation days, a new order must be issued. According to this order, the accounting employee must make new accruals.

Taxes and fees

When a call is made from vacation, payments from the employee are not withheld, but are deducted from future wages. This means that there is no need to return personal income tax, since there was no income.

Nevertheless, the income tax is subject to recalculation, but a declaration should not be submitted to the Federal Tax Service, since the call was made for operational reasons.

The accountant may also be faced with the issue of recalculating insurance premiums. It all depends on when the employee was recalled from vacation:

• If an employee returns from vacation at the beginning of the month, then insurance premiums are recalculated only at the end of the month.
• If the withdrawal occurred in one month, and the payment of contributions occurred in the past, then an overpayment will occur. In this case, overpaid contributions simply need to be taken into account in future periods.

As a result, it should be noted that recalculation will have to be done in any case. To make it easier to navigate payments, it is worth remembering that overpayment of taxes and insurance premiums is usually proportional to the overpaid amount of wages. If there is an overpayment on wages, then there is also an overpayment on taxes and contributions.