The employer does not provide leave. If you are not allowed on vacation for a long time. Scheduled rest

During the whole year of work everyone starts thinking about a break and wants to be distracted for a couple of weeks, relax at home, fly to the sea and the like.

But it happens that the employer does not want to let the employee go on a well-deserved vacation, and then the Labor Code of the Russian Federation comes to the aid of employees. Any employee needs to know what to do if they are not allowed to go on vacation.

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Legislative regulation

Very often, employees are worried whether the employer may not let them go on vacation for any reason, and sometimes this concern is justified.

First of all, holidays provided to employees according to the schedule, which is established by the organization and approved by the employer together with the selected trade union organization.

The boss has no right to refuse vacation according to the schedule, because the law obliges to approve the vacation schedule two weeks before the start of the year, that is, around mid-December.

approved schedule important for both parties, 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 elected trade union body.

If the authorities propose to postpone the vacation for another period, be aware that this action can be completely only with the personal consent of the employee. In cases where the employee's vacation will negatively affect the work of the organization, it can be transferred to the next year, but this is 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 vacation for two consecutive years. If the employee has suffered any damage during the proceedings related to the leave, he has the right to demand compensation from the organization where he works.

Who can't be denied?

In addition to ordinary workers, the Labor Code of the Russian Federation also took 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:

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

Possible reasons

The employer cannot refuse to leave according to the schedule, it can only be moved with the consent of the worker. However, if the worker decides to take vacation whenever he wants and he is not a citizen with certain benefits, then the boss has the right to refuse vacation.

Situations in which there may be a conversation about the refusal (transfer) of vacation:

In other cases, refusal to grant leave will violate the labor code of the Russian Federation.

If you need to go on vacation, even if they don’t let you go, 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, according to the approved dates, to register it with the secretary.

So the employer considered notified about your intention to take legal leave.

Where to complain?

Before taking radical measures, you need to try to do everything to agree with your superiors and come to a unanimous decision on this issue. But don't forget that failure to grant leave is punishable by a fine of up to 50 thousand rubles.

If the boss is not going to provide leave and does not compromise, you can use the following measures:

Complaint to the labor inspectorate reviewed on average within 10-15 days, the maximum period for consideration of the application is 1 month. And the basis for applying to the court may be a refusal to leave in the last 2 years.

Watch a video about what to do in case of refusal:

If you are not given legal leave, get your way with the help of the above authorities.

How to go on vacation if the employer does not let go: Vacation is one kind of vacation type. One of the provisions of the Labor Code refers to this. Vacation is a period of time that an employee uses according to his plan. During the vacation, a person does not perform his duties during the specified period. Vacation is distinguished by its duration and is one of the most continuous types of recreation. If the director does not let go on vacation, then the issue is regulated by law.

The duration of the leave is regulated by legislation, according to which employees of companies are granted annual leave. At the same time, the organization retains the place of work and the average salary for the employee. The duration of the annual leave is 28 working days. Planned vacation is always paid. The legislation obliges the organization to provide leave to each employee every year worked. If the employer does not let go on vacation, the employee, based on the legislative framework, can exercise this right on his own.

The first vacation can be taken after six months of continuous service. If they are not allowed to go on vacation, you need to rely on the Labor Code, which lists the terms that fit into the length of service. Based on them, the employee can go on vacation with pay. These include:

Actual time spent at work;
The time of actual absence from the organization, but the employee retained his place of work and annual leave by law;
Time, forced absence from work due to illegal dismissal and suspension from work;
Other criteria that are provided for by the internal acts of the company.

This is a list of periods to be included in the continuous work experience. But he is not complete. It is the responsibility of the employer to include these items in the length of service, but in addition, the employer, at his own expense, can expand this list. The Labor Code defines several more periods that cannot fit into the worker's length of service. These include:

The period of absence of an employee in the organization without good reason;
Appearance in alcoholic intoxication;
period of maternity leave;
Period, leave at their own request, without pay.

This list is complete. However, the employer, at his own expense, can include these periods in the employee's length of service. For example, the length of service can include the period of caring for a small child. The implementation of the vacation does not depend on the discretion of the employer, therefore, if the employer does not let you go on vacation, then relying on legislative articles, your right can be exercised legally. The code indicates those categories of workers who are provided with mandatory leave after six months of service. These include:

Women on maternity leave;
Underage employees;
worker who adopted a newborn.

The law may designate other categories that must be granted leave after a continuous six-month service. If they are not allowed to go on vacation, then this will become the basis for its implementation on their own, since the time of vacation does not depend on the wishes of the employer. In order to take a vacation, the employer must submit an appropriate application. Leave for the second year of service and subsequent, then it can be provided according to the schedule in the requested or specified period.

Every year, the organization draws up a vacation schedule, taking into account the opinion of the local trade union organization. This document is an internal regulatory act, and applies to each employee of the organization. The schedule must be approved before the end of the working year. If the director does not let go on vacation, you must request a vacation schedule for review.

If the organization does not have such a schedule, then the employees themselves determine a convenient time for rest. If employers do not let go on vacation, and the organization does not draw up a schedule, this cannot prevent the employee from going on vacation. The employee can exercise this right independently. For this, a written application is written two weeks before the vacation. The period when you can warn the employer about the planned vacation is indicated in the legislation.

Vacation schedule is important for all employees of the organization. Therefore, the employer is obliged to provide leave, and the employee is obliged to use it at the set time. In the schedule, the time of use of the vacation is usually indicated. After drawing up the schedule, the employer is obliged to notify the employee about the time of his vacation at least two weeks in advance in writing. But, if at work they don’t let go on vacation, the employee may postpone the leave, subject to the provisions that are provided by law.

The employer must take into account the rights of certain categories of workers when drawing up the schedule. They have the right to use the vacation time according to their personal preferences. This category includes pregnant women, the disabled and minors.

This category of employees is obliged to provide the employer with a written application, which will indicate the terms for using the vacation. Vacation periods for this category of employees should be indicated in the schedule. In those circumstances where the employee can determine the time of the vacation, the employee may apply to the employer with a request to change his own schedule. The employee's application is satisfied by making changes to the schedule, or the employee can simply go on vacation, according to his application.

The period of leave granted can be agreed upon by both parties. This agreement should worsen the position of the worker in relation to the legislation.

If the above two conditions are met, then the employer can transfer the vacation to the next working year, however, such vacation must take place within the next year.

Otherwise, during inspections by regulatory authorities, adverse consequences may occur for the employer, which we will consider below.

This is explained by the fact that the above article of the Labor Code of the Russian Federation contains a direct ban on the employer not to provide annual paid leave for two consecutive years.

Application rejection cases

There are cases when an employee intends to exercise his right to rest at work in the month he has chosen for one reason or another (whether it be the need to interrupt the labor process to resolve personal issues, or the desire to just relax), he writes an application for a vacation, and the vacation do not give, do not sign the application.

It is not always necessary for management to meet the needs of the employee. Can an employee be denied leave and what to do if he is denied? In some cases, the employer has the right to refuse to grant leave. Let's consider these cases.

One of the most common cases is when an employee asks to take an off-schedule vacation. The fact is that the vacation schedule is mandatory for both the management and employees of the company (Article 123 of the Labor Code of the Russian Federation), therefore its violation is unacceptable.

However, there is still an opportunity to go on vacation not according to the schedule. To do this, you simply need to change this schedule, because in addition to the column with the planned vacation date, there is a column with the actual provision of it. Therefore, if the management turns out to be loyal, then it is quite possible to go on vacation during the period indicated by the workers.

Categories of workers	Base
Women before going on maternity leave or immediately after leaving it, as well as after parental leave	Art. 260 of the Labor Code of the Russian Federation
Minors	Article 267 of the Labor Code of the Russian Federation
External part-timers	Article 286 of the Labor Code of the Russian Federation
During the wife's pregnancy	Art. 123 Labor Code of the Russian Federation
Those who combine work with study	Art. 177 Labor Code of the Russian Federation
military spouses	Federal Law of May 27, 1998 No. 76-FZ l “On the Status of Military Personnel”
exposed to radiation	Law of the Russian Federation of May 15, 1991 No. 1244-I "On the social protection of citizens exposed to radiation as a result of the disaster at the Chernobyl nuclear power plant"
Heroes of the Soviet Union, Heroes of the Russian Federation and full cavaliers of the Order of Glory	Law of the Russian Federation of January 15, 1993 No. 4301-I "On the status of Heroes of the Soviet Union, Heroes of the Russian Federation and full holders of the Order of Glory"
Awarded with the badge "Honorary Donor of Russia"	Federal Law "On the donation of blood and its components" dated July 20, 2012 N 125-FZ
Veterans and participants of the Great Patriotic War and hostilities, labor veterans	Federal Law of January 12, 1995 No. 5-FZ "On Veterans"
Heroes of Socialist Labor and full holders of the Order of Labor Glory	Federal Law of January 9, 1997 No. 5-FZ "On the provision of social guarantees to Heroes of Socialist Labor and full holders of the Order of Labor Glory"

Another common case of refusal to grant leave to an employee is the insufficient duration of work with the employer during the first year after hiring.

Article 122 of the Labor Code of the Russian Federation establishes the rules for granting annual paid holidays, according to which, for the first year of work, you can go on vacation no earlier than six months after employment. However, this article allows you to send on vacation before the expiration of six months with the consent of the employer.

There are times when an employee asks for leave before dismissal. He has such a right under Article 127 of the Labor Code of the Russian Federation.

This right is also the right of the employer, but not at all his obligation, therefore, leave may be denied.

Without pay

Can an employer refuse to give an employee unpaid leave?

Leave without pay is regulated by Article 128 of the Labor Code of the Russian Federation. It is provided at the request of the employee for one reason or another. The validity of these reasons is determined by the employer, by agreement with which the duration of the vacation is also determined. The above article secures for the employer only the right to grant unpaid leave.

However, there are a number of cases when the employer is obliged to provide such leave:

In other cases, it remains only to rely on the favor of the leadership.

Where can an employee go to protect their interests?

In such cases, the employee needs to apply to various authorities for the restoration of his violated right to rest, because simply not going to work at the time set according to the vacation schedule is not desirable, because this fact by the employer can be qualified as absenteeism, for which you can completely lose your job.

According to Article 352 of the Labor Code of the Russian Federation, an application for protection can be sent to:

Article 382 of the Labor Code of the Russian Federation. Bodies for consideration of individual labor disputes

Individual labor disputes are considered by labor dispute commissions and courts.

Documents must be attached to the application confirming the fact of being in an employment relationship with this employer. This confirmation is:

extract from the work book;
also, a copy of the order for employment will not be superfluous;
employment contract.

After contacting the appropriate authority, you must wait for the consideration of the complaint received. As a rule, such appeals are satisfied with a subsequent order to the employer to fulfill the obligation to provide leave.

Responsibility of the employer

For failure to provide annual paid leave to an employee, the employer may be held administratively liable.

The right to rest is a legal right of workers. Refusal to exercise such a right is fraught with quite serious consequences for the employer in the form of penalties.

Moreover, by releasing the employee on vacation, the employer will receive much more benefit for the enterprise in the form of a rested employee, ready for new achievements, rather than endlessly forcing the employee to work to the last of his strength.

Thus, the timely provision of leave will allow both to respect the rights of workers to rest and to get an excellent team for new labor exploits.

Paid leave is annually due to all categories of personnel, without exception, with the retention of the position and average salary (Article 114 of the Labor Code). But in practice, employees are often denied the right to rest, motivating this decision by the administration with production necessity. In some situations it will be legal, in others it won't.

Therefore, the question is: Can the employer not let go on vacation? will be interesting not only for employees, but also for employers. We will understand the regulatory requirements, compliance with which will help organizations avoid and prevent labor conflicts with staff.

In chapters 17 of the Labor Code establishes the general concept of rest time for employees, that is, the period that an individual has the right to dispose of at his own discretion, without the need to come to the workplace (Art. 106). The current types of staff recreation are listed in stat. 107, one of them is vacation.

All employees of the employer can take annual leave. However, in accordance with the provisions of Art. 115, the enterprise is obliged to keep the place of employment (position), as well as the salary (average) for the vacationer. The usual duration of such a rest is 28 days according to the calendar (stat. 122). In some cases, certain categories of personnel and taking into account legal requirements may be issued an extended vacation.

The normative regulation for the provision of regular vacations to individuals is established in stat. 122 TK. It says that management must send their employees on annual leave. If the employee has recently found a job, he will be able to take advantage of the rest for the first time after six months of employment (continuous). But by agreement with the administration of the employer, it is allowed to leave to rest earlier. This rule does not apply to:

Pregnant workers who decide to take a vacation immediately before the decree or immediately after.
Minors under the age of 18 years.
Employees who have issued the adoption of children under 3 months.

The order of vacations for staff is established by the employer in the schedule. The order must be finally approved by the head of the company no later than 2 weeks. before the next calendar year (stat. 123). At the same time, timely notification of employees is mandatory (at least 2 weeks before the start of the holiday). And individual employees, regardless of the general continuity of employment in the organization, have the right to take annual rest at a time that is convenient for them, and not for the employer. For example, this is the spouse of a woman on maternity leave.

Can the employer not let go on vacation

Since the right to staff leave, as mentioned above, is enshrined in labor legislation, the employer cannot unilaterally refuse such a vacation. Documentedly, the personnel officer draws up the order of using leave in the schedule according to the recommended T-7 form. But in certain, exceptional situations, the transfer of the vacation period (in parts or in whole) to the next calendar year is allowed. At the same time, it is necessary to obtain the consent (in writing) of a specialist, justify the production need for such personnel actions (Art. 124), and also make clarifications to the schedule f. T-7.

Note! It is strictly forbidden to refuse, for any reason whatsoever, an employee's use of leave for two consecutive years. Just as it is not allowed to replace the next vacation (annual) with money.

On the other hand, the production need may arise later, during the time when the specialist has already gone on vacation. What to do in this case? In accordance with the provisions of Art. 125 the so-called recall of an employee from the current vacation is possible. For the legitimacy of its position, the employer is obliged to justify the urgent need for a vacation worker and obtain consent (exclusively in writing) from the person for an unplanned return to the organization. It is forbidden to revoke:

Minors under the age of 18.
Women expecting a baby.
Professionals employed in hazardous and/or harmful working conditions.

Note! When recalling, non-holiday days are subject to subsequent provision to the employee at a time that is convenient for him, or joining the vacation period for the next year of employment.

In what cases the employer has the right to refuse the employee to leave

And can the management not let the employee go on vacation and when such actions will not be a violation of human rights? The only situation in which an employer may not allow a specialist to rest is an unscheduled vacation. That is, a vacation not provided for in the schedule and unexpectedly declared by an individual. If an employee belongs to one of the preferential categories, he has the right to use the rest at any time, even without agreement with the management. Otherwise, going on vacation "from the bay-floundering", without the approval of the start and end dates of the vacation with the employer, is punishable by dismissal for absenteeism in the event of the employee's absence.

Therefore, from the foregoing, we can conclude that in order to postpone a vacation or recall an employee from a current vacation, the consent (written) of an individual is required. And it is legal not to let a person go on vacation, the employer has the right only for unscheduled holidays. Nevertheless, there are several preferential categories of personnel and situations in which vacations are used, when management cannot, under any circumstances, deny a person the right to rest or to take a vacation at a convenient time for the employee.

In what cases does an employer have the right to refuse an employee a vacation:

The next vacation of a paid nature before the decree of a pregnant employee or immediately after it - according to stat. 260 of the Labor Code, this rule also applies to children's holidays. Continuous experience in the organization does not matter.
Leave of the wife of a woman on maternity leave.
Allowance for personnel who combine work with training, as well as allowance for applicants for the degree of doctor or candidate of sciences - in accordance with chapters. 26 of the Labor Code, such leave is granted on the basis of a call from an educational institution. The certificate form is approved at the federal level (stat. 177).
Regular leave of a paid nature to one of the parents of a minor child under 18 years of age to be accompanied to an educational institution for the purpose of admission - such a vacation in accordance with the norms of stat. 322 is provided only by employers located in the Far North, as well as equivalent to them.
Allowance lasting 4 paid days of rest - is monthly due to individuals with disabled children for the purpose of care. The basis is a written statement of the employee (Article 262).
Admission of an unpaid nature for up to 14 days. (calendar) per year - may be provided at the request of an employee with two or more children under 14 years of age; with a disabled child under 18; as well as a single mother/father with a child under 14 years of age. The summation of such leave for subsequent periods is prohibited (Article 263).

Categories of personnel entitled to take leave at any time convenient for the employee:

Persons under the age of majority, that is, 18 years old (stat. 267) - such employees are entitled not to 28, but 31 days (calendar) as the next leave with pay.
Persons involved in the upbringing of underage children with disabilities (stat. 262.1) - such specialists do not have to coordinate the rest period with the management.
Employees recalled by decision of the employer (Article 125) - such citizens have the right to subsequently use non-vacation days at any time convenient for them, and not for the enterprise.
Employees admitted to the state on a part-time basis (stat. 286) - such persons can use vacations at the same time, that is, during the period of rest from their main job.
Some other categories of personnel - for example, the wives of military personnel; honorary donors; Chernobyl. Legislative regulation of the rest regime for these and other categories of workers is carried out at the federal level.

Note! This article did not consider unpaid leave, which is provided under labor law to privileged employees. These are, for example, pensioners, disabled people, heroes of Socialist Labor, veterans, etc.