Expert advice: how to let an employee go on vacation tomorrow

Legislative regulation

Very often, employees worry whether the employer may not allow them to take the required vacation for some reason, and sometimes this concern is justified.

First of all, vacations are provided to employees according to a schedule that is established by the organization and approved by the employer together with the selected trade union organization.

The boss has no right to refuse scheduled leave, because the law requires approval of the vacation schedule two weeks before the start of the year , that is, approximately in mid-December.

It is important for both parties to comply with the approved schedule , and its change is unacceptable unilaterally, that is, if the employee is not satisfied with the vacation time, he can change it only with the consent of the boss or the selected trade union body.

If the boss offers to postpone the vacation to another date, be aware that this action can only be carried out with the personal consent of the employee . In cases where an employee’s vacation has a negative impact on the work of the organization, it can be postponed to the next year, but again with the consent of the worker.

According to Article 124 of the Labor Code of the Russian Federation, legislation prohibits the failure to provide paid rest for two years in a row . If an employee suffers any damage during leave-related proceedings, he has the right to demand compensation from the organization where he works.

Deviations from the vacation schedule

According to 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 two weeks before the start of the calendar year in the manner established by Art. 372 of the Labor Code of the Russian Federation for the adoption of local regulations.

The vacation schedule is mandatory for both the employer and the employee. However, deviations from the schedule are still possible.

First, let's talk about cases where the law requires changing the employee's planned rest date. In particular, by virtue of Art. 124 of the Labor Code of the Russian Federation, annual paid leave must be 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 (for example, vacation is planned from 12/01/2015 to 12/29/2015. The employee was notified of the start of the vacation on 11/13/2015, an order was issued to grant vacation, vacation pay was paid on time. On 11/30/2015, the employee fell ill and contacted the employer with an application for transferring vacation. In such a situation, the employer cannot refuse the employee and is obliged to satisfy his request - cancel the order to grant vacation and take into account the employee’s opinion when granting vacation on other dates);
• 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.

This is also important to know:
When vacation pay is paid: how it is calculated, liability for violation of payment deadlines

If the employee was not promptly paid for the time 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 also obliged to postpone the annual paid leave to another date agreed with the employee.

note

Even with the mandatory transfer of vacation, new vacation dates are determined in some cases by the employer independently, only taking into account the wishes of the employee, but not following them, and in other cases - by the employee.

Given the above reasons, employees often believe that they can go on vacation when they need to, and are completely confident that the employer does not have the right to prohibit them from doing so. Thus, the Khabarovsk Regional Court considered a dispute regarding the application of disciplinary measures to an employee who went on leave without permission after his part was transferred. The Appeal Determination dated September 12, 2014 in case No. 33-5797 states that the employer tried many times to find out the plaintiff’s opinion about the deadline for rescheduling vacation (the vacation was postponed due to temporary disability during the period provided for by the schedule), but the plaintiff unilaterally determined for himself the start date of the vacation and departed for it, which contradicts Part 1 of Art. 124 Labor Code of the Russian Federation.

In addition, employees can return to work on the day their vacation begins. These actions can also be considered a violation of labor discipline, which is confirmed in judicial practice. So, on the day established by the vacation schedule (07/18/2013), the employee went to work and submitted a corresponding application to the employer. The court indicated that unilateral actions by employees to postpone the date of vacation are unacceptable (Appeal ruling of the Supreme Court of the Chuvash Republic dated May 22, 2015 in case No. 33-1663/2015).

However, not only for the reasons mentioned in Art. 124 of the Labor Code of the Russian Federation, you may need to change the start or end date of the vacation. For example, an employee has certain circumstances and needs leave at a time other than planned. In this case, he contacts the employer with a statement in which he asks to change the period of rest.

Who can't be refused?

In addition to ordinary workers, the Labor Code of the Russian Federation also takes care of a rather narrow circle of people, who can be granted leave at any time of the year.

The list of citizens who can be granted annual paid leave at any time of the year:

1. Workers under the age of majority (18 years old);
2. People who participated in the Second World War, disabled people, and combat veterans;
3. Heroes of the USSR, Heroes of the Russian Federation, full holders of the Order of Glory;
4. Heroes of Labor and Knights of the Order of Labor Glory;
5. This benefit is also available to donors with the title “Honorary Donor of Russia”, and to people exposed to radiation, suffering from radiation sickness, and victims of the Chernobyl accident.

After maternity leave, a woman is entitled to leave until the child reaches 1.5 years of age. At this time, 40% of average earnings . In addition, according to the law, a man also has the right to leave during the pregnancy and childbirth of his wife.

You can read more about paternity leave at the birth of a child here.

Vacation laws

At each enterprise, management draws up a special vacation schedule, which necessarily takes into account all the wishes of the employees, as well as the main production and organizational capabilities of the employer. The direct obligation to comply with such an established schedule rests with both the employer and the employees; this is a legal employment relationship.

If vacation is scheduled, it can only be used with the consent of the employee, and also under the certain condition that all vacation rights were used last year.

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Important! If a manager does not grant vacation leave for two years in a row, this is a gross violation of labor legislation in general and in relation to an individual employee.

This condition is specified in Articles 123 and 124 of the Labor Code of the Russian Federation. In a situation where the employer refuses to provide you with legal rest, it is worth reminding him of these articles. Let's take a closer look at who is granted annual leave, how rest time is transferred throughout the year, and who has the right to additional rest provided on special grounds.

All this is necessary to know in order to obtain a more effective result when deciding on the provision of legal rest.

Does the employer have the right to assess the validity of the reasons for leave?

Is it necessary to take leave to participate in a trial?

With whom should the employee agree on leave?

Along with annual paid leave, employees have the right to ask the employer to provide them with leave without pay (leave at their own expense). The provision of such leave is regulated by Article 128 of the Labor Code. The article directly names the categories of employees to whom employers are obliged to provide such leave (for example, working pensioners and disabled people). The duration of their leave is limited to a certain number of calendar days per year. But besides this, any of the company’s employees can request leave at their own expense for family reasons and other valid reasons (paragraph 1 of Article 128 of the Labor Code of the Russian Federation). Moreover, there are no restrictions on its duration. If an employee too often asks for leave at his own expense and this negatively affects his performance of his job function, the employer, it would seem, can refuse him such leave. And if an employee, despite the refusal, still does not come to work, fire him for absenteeism. The problem is that the employee can subsequently challenge the refusal to provide leave or illegal dismissal in court, as well as contact the labor inspectorate with a complaint about the employer’s actions. As practice shows, workers manage to defend their rights quite successfully. In this article, as an employer, you won’t get into trouble when you can and when you shouldn’t refuse leave at your own expense.

Possible reasons

The employer cannot refuse scheduled leave; it can only be rescheduled with the consent of the worker. However, if a worker decides to take leave whenever he pleases and he is not a citizen with certain benefits, then the boss has the right to deny leave.

Situations in which there may be a conversation about refusing (postponing) vacation:

• The worker’s desire to postpone his vacation to another date (possible only with the consent of his superiors);
• Problems in the organization that interfere with the worker’s vacation;
• If a worker asks to divide the vacation into parts for subsequent rest, for example, in winter and summer.

In other cases, a refusal to grant leave will violate the Labor Code of the Russian Federation.

If you need to go on vacation, even if you are not allowed to go on vacation, you can simply not go to work. But this applies only to those employees whose vacation is approved in the vacation schedule . It is necessary to write an application for leave, according to the approved dates, and register it with the secretary.

Thus, the employer is considered to have been notified of your intention to take legal leave.

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

But what to do if they don’t give you vacation? Before taking radical measures, you need to talk with your superiors and find peaceful ways to resolve the conflict. In case of repeated refusal, the citizen must apply for protection of his rights to the competent authorities.

Attention: Unused vacation can be reimbursed with monetary compensation only on the personal initiative of the employee and with the appropriate application.

Application to the labor inspectorate

You can contact this authority after the date written in the vacation schedule. Two identical statements should be drawn up in free form, outlining in great detail the essence of the appeal and complaint.

One copy with the inspector's visa will remain with the applicant, the second - with the inspection employee.

Documents confirming what was written must be attached to the letter.

Next, you need to send the application in any convenient way:

• hand over personally;
• send by mail with notification;
• send a request by email;
• use the online labor inspection service.

During the consideration of the complaint, the inspection commission will conduct an unscheduled inspection of the company. The inspector will determine the legality of compliance with the norms for the provision of rest in relation not only to this person, but also to the entire staff of the organization.

If violations are exposed, the employer will be given a mandatory order to eliminate the violations, and will also be held accountable in accordance with Art. 5.27 Code of Administrative Offenses of the Russian Federation. In this case, the employee will receive a long-awaited vacation.

Radical methods of getting vacation

A decisive step in resolving this issue would be to contact the prosecutor’s office with a request to conduct an unscheduled inspection of a violation of the Labor Code of the Russian Federation in a specific organization.

The application must be accompanied by documents confirming the fact that you are in an employment relationship with the employer and provide a copy of the vacation schedule. After this, you should wait for the test results.

Claim against employer

A claim is filed with the judicial authorities if an employee, in addition to vacation, wants to receive compensation from his employer. You need to compose it correctly, in legible handwriting, adhering to the correct structure.

Appeal to the Prosecutor's Office

complaints against an employer to the Prosecutor's Office for free in word format

In addition to contacting the labor inspectorate, citizens have the right to appeal the actions of the employer through the prosecutor's office and courts at the location or residence of the management. The reason for protecting the rights of the employee will be a labor offense for refusing to provide leave for two years.

When an individual decides to appeal the actions of management to the prosecutor’s office via email, this may not be accepted due to the lack of a digital signature on it. In order for the application to be accepted, it is better to use the traditional method of sending documents through the post office.

Please note! The complaint must be submitted in two pieces. When filing a complaint in person, the prosecutor's office employee will put a stamp on the second copy indicating acceptance. If the documents are sent by mail, it will be possible to prove the fact of sending upon receipt of a notification of delivery, which will indicate the time the prosecutor received the complaint and his signature on acceptance.

Before sending an appeal to the prosecutor's office, it is necessary to find out the exact address of the department of the authority in the locality at the location or registration of the employer. This information must be indicated at the top of the complaint along with the last name, first name, patronymic, as well as TIN and place of registration. You should also provide a contact phone number so that prosecutors can contact you.

The main part of the document should contain the essence of the controversial issue, described in a business style, with the exception of colloquial words. In this part it is worth specifying all the circumstances in detail.

All violations committed by the employer must be indicated in the listing.

However, do not forget that the facts of violation will have to be proven by attaching documents, otherwise such information will not be considered.

In the complaint, it is necessary to write wishes about the impact on management if the offense is proven.

The attached documents are noted at the bottom of the complaint. It is recommended to send copies of certificates to the prosecutor's office, and keep the originals, as they may be useful for filing a claim in court.

ATTENTION! Look at the completed sample complaint against an employer to the Prosecutor's Office:

Attention! Our qualified lawyers will assist you free of charge and around the clock on any issues. Find out more here.

The complaint is considered by the prosecutor's office within one month. During this time, the prosecutor is obliged to take measures to influence the manager if an offense has taken place. In most cases, after the first appeal from the prosecutor, employers strictly comply with their instructions.

How can you punish an employer who does not allow you to take vacation?

Vacation is transferred automatically:

• if the employee was not paid vacation pay on time (no later than three days before the start of the vacation);
• if the employee was not notified in a timely manner (no later than two weeks before the start) of the start date of the vacation.

Thus, if the employer did not warn the employee about the upcoming vacation and did not pay vacation pay, this does not mean that the employee has lost the right to this vacation. The employee can simply go on vacation after receiving the vacation amounts due to him. This procedure is established by parts 1, 2 of Article 124 of the Labor Code and is explained in the letter of Rostrud dated 06/01/2012 No. PG/4629-6-1.

If the employer does not provide the employee with leave, he may be fined by the labor inspectorate. The amount of the fine is (Article 5.27 of the Code of Administrative Offenses of the Russian Federation):

• for officials of the organization (manager) – from 1000 to 5000 rubles. (repeated violation - a fine of 10,000 to 20,000 rubles or disqualification for a period of one to three years);
• for individual entrepreneurs – from 1000 to 5000 rubles. (repeated violation – fine from 10,000 to 20,000 rubles);
• for an organization – from 30,000 to 50,000 rubles. (repeated violation – fine from 50,000 to 70,000 rubles).

Labor inspectors may, among other things, report an offense to an employee. You can complain about your employer electronically (online). This can be done, for example, through a special service of Rostrud. Also see “The employer does not allow vacation: on whose side is the law?”

If your employer illegally refuses to give you leave, you have the right to seek protection of your rights from the following organizations:

• state labor inspection of your constituent entity of the Russian Federation;
• labor dispute commission (if any);
• trade union (if any);
• district court at the location of the employer, place of residence or place of execution of the employment contract.

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According to Article 133 of the Labor Code of the Russian Federation, certain categories of workers have the right to demand annual paid leave at any time convenient for them.

These include:

• specialists who have not reached the age of majority. Such specialists receive 31 days of rest instead of the usual 28 days. The rule is reflected in Article 267 of the Labor Code of the Russian Federation;
• a single parent raising a child under the age of twelve. The right to choose a holiday date for them is regulated not only by the Labor Code of the Russian Federation, but also by other legal acts;
• specialists who were unexpectedly called back to work during the last vacation. These workers have the right not only to receive rest at a time convenient for them, but also to increase the period for the entire unused period. The rule can be found in Article 125 of the Labor Code of the Russian Federation;
• On the basis of Article 286 of the Labor Code of the Russian Federation, an employee engaged in part-time work has the right to receive leave at a convenient time. The law makes it possible to enjoy rest at the first and second jobs simultaneously;
• parents of a disabled child who has not reached the age of majority. This opportunity can be used by his guardians or other legal representatives. The rule is regulated by Article 262.1 of the Labor Code of the Russian Federation;
• military wife. A woman has the right to demand that her employer grant her leave at the same time as her husband. However, it will be necessary to prove that the employee received rest. You can read more about the rule in Law of the Russian Federation N76 of May 27, 1998;
• The right to choose the date of vacation is given to honorary donors of Russia. The basis is Federal Law of the Russian Federation N125 of July 20, 2012.
• persons who took part in the liquidation of the Chernobyl accident also apply for unplanned leave. Basis - Law of the Russian Federation N1244-1 of May 15, 1991.

We suggest you read: They don’t give you a full vacation, what to do?

Remember! The above categories of employees have the right to demand that the employer provide vacation at a time convenient for them. If the employer refuses to use their right, they should contact the labor safety and protection inspectorate.

If your employer refuses to provide time off, try simply talking to them. Each of us – a person and an employer – is no exception. It is quite possible that after explaining your situation, he will meet you halfway.

Trying to resolve a conflict peacefully is not difficult.

It is enough to follow a few generally accepted rules:

• Before you go to investigate, check whether the employer actually received your leave application. Often misunderstandings arise due to clerical errors;
• Before visiting the manager, make an appointment with him or simply arrange a meeting in advance. If there is no rush, the manager will be able to understand your problem;
• speak to your boss in a cold, distant tone. Remember that you are the employee, he is the employer. Subordination is an important condition for successfully resolving the issue;
• do not get personal, do not mention his misdeeds to the boss. Don't insult him. Remember that swearing has never brought good results;
• You can put a little pressure on pity. However, don't overdo it. You shouldn't feel like you're taking advantage of your boss's kindness.

As practice shows, in 60% of cases a simple conversation helps to get the desired rest at the right time.