Can an employer refuse to hire if the employee studied at a higher educational institution that does not have state accreditation? Can an employer refuse to provide leave?

26.09.2019

Is an unreasonable refusal to hire always illegal? How to properly motivate a reluctance to hire an applicant and whether it is possible to challenge an employer’s negative decision is not difficult to figure out if you know labor law!

The history of labor legislation has described many precedents related to challenging unjustified refusals to hire applicants for a vacant position, but similar situations continue to occur, and most of them do not reach the courts. Why is this so?

When looking for a job, many job seekers are psychologically ready to make a negative decision and do not want to delve into why the employer is refusing them. In addition, most citizens are simply not aware of their rights, unlike personnel officers who know the necessary articles of the law and know how to convince potential applicants of the correctness of their arguments. But they also make mistakes, looking for reasons.

Based on legislative framework, the concept of “unreasonable refusal” can be defined as follows: this is a refusal to hire that does not have the grounds listed and regulated by the Labor Code of the Russian Federation - Art. 62, 63, 64.

These articles specify the types of groundless refusal:

on discriminatory grounds (race, gender, marital status, age, pregnancy, etc.);
unlawful (when the applicant is presented with requirements not provided for by law);
unmotivated (when the employer does not bother to explain to unsuccessful employees the reason for the refusal). At the request of the person who was refused, he must provide a written document indicating this reason.

Contains a code and a number of articles defining possible negative grounds for hiring a new employee. More about them...

Legitimate reasons for refusal to hire

Among the official reasons for refusal are the following:

the candidate has not reached the age required to sign employment contract(Article 63 of the Labor Code of the Russian Federation);
lack of documents required for registration (Article 65 of the Labor Code of the Russian Federation); Moreover, the absence of a work book is not such a reason - if the hired employee has lost it (or has not yet created it) and he notified the employer - the enterprise - about it;
inadequacy of physical health and psychological characteristics applicant for the proposed position (Articles 253, 265 of the Labor Code of the Russian Federation);
presence of an entry in work book candidate for a ban on holding this position and conducting certain activities (Articles 44, 47 of the Criminal Code of the Russian Federation).

Also, separate regulatory documents establish restrictions on the possibility of accepting a vacancy in the field of:

pedagogical activity;
public service;
medical practice.

The law makes it possible to understand how to correctly refuse an applicant a job - a personnel officer can use any of the following wording:

lack of the required level of education;
there is no practical experience in the area of activity of the enterprise;
the applicant’s health condition contradicts the requirements imposed on the employee for this position (a conclusion from a medical commission is required);
the candidate’s personal qualities indicate that it is impossible for him to fulfill professional responsibilities(this wording can be used after);
the knowledge and skills that the applicant possesses do not correspond to the direction of the organization;
lack of vacancies in the organization at the time of application;
the interview was conducted by an unauthorized person;
the candidate does not meet the requirements prescribed by special regulatory documents.

Unlawful grounds for refusal of a vacancy

The list of unfounded refusals submitted in the labor code is of a notification nature and may include many reasons that the court considers unlawful. An applicant who has been refused can win a case in court if the reason is one of:

pregnancy or the presence of a child under 6 years of age or a disabled minor child;
(if management was notified in writing);
disability (presence of a medical certificate);
HIV infection;
non-observance of rights - discrimination of racial, national, property, ethnic, social, religious, age, gender nature.

Any of the above reasons will be grounds for filing a claim, the main thing is that the rejected applicant for the position receives a written refusal to hire - the employer must provide it upon request no later than three working days.

How to challenge an employer's refusal to hire you in court

The right to work and choice of activity is regulated by the Constitution of the Russian Federation. Every citizen who has received an unlawful refusal to hire can challenge it in judicial procedure based on part 6 of Art. 64 Labor Code of the Russian Federation.

The period for appeal after receiving an unlawful decision from the employer is three months. In this case, the plaintiff has the right to compensation for material and moral damage, and, if desired, to obtain the coveted position if the case is won.

Difficulties that the applicant may encounter statement of claim, are as follows:

it is necessary to prove the fact of contacting the employer’s organization;
it is necessary to prove the fact of refusal - that is, to obtain written confirmation of it with the discriminatory reasons listed above.

If the written refusal contains only a note about the candidate’s absence business qualities necessary to carry job responsibilities or there is an indication that the applicant does not meet the requirements specified in the regulatory documents - the case will obviously be lost, and the fact of an unlawful refusal will be practically unprovable! Even with witnesses, winning will be difficult and troublesome!

Perhaps, for a failed employee, the consolation will be the realization that he was lucky not to be subordinate to a manager who does not value the company’s reputation and the respect of his employees! After all, such a manager may sooner or later be punished for a careless attitude towards personnel issues.

It doesn’t matter whether you are a job seeker or an employer, knowledge of what a motivated refusal to hire looks like will not be superfluous! Be legally literate and let your profession give you only positive emotions!

When considering whether an employer can refuse leave, it is important to consider the presence (or absence) of extraordinary circumstances. They mean conditions that pose a threat to downtime in production or other activities. One of these circumstances is when an employee goes on sick leave (Article 124 of the Labor Code of the Russian Federation), as a result of which the work team cannot cope with the workload.

It is important that the procedure for refusing (or rather, transferring) leave on the initiative of management must be properly formalized:

Changing the vacation schedule. It is compiled and approved by the employer annually, but adjustments can be made over time. calendar year.
Issuance of an order by management. It contains information about the transfer of annual paid leave for one or more employees.
Obtaining written consent from the employee. It is compiled in free form and submitted to the personnel department.

Other grounds for transferring annually granted leave include the performance of government duties with the provided exemption from performing a labor function; other cases fixed labor legislation or legal acts of a specific organization or enterprise.

Categories of employees who cannot be refused

Postponement of vacation to the next year is not allowed more than once in a row. If last year an employee did not take the required rest for legal reasons (to maintain the normal course of business legal entity or individual entrepreneur), then next year a repeated transfer is not possible. Even such an employee’s consent in writing is not an exception.

An employer's refusal to grant leave is impossible for the following categories of workers:

Pregnant women, persons who have adopted babies under the age of 3 months;
Employees carrying out labor function in harmful (dangerous) conditions;
Persons under the age of majority.

It is important that the listed groups of workers are assigned the right to receive leave outside the drawn up and approved schedule. The employer does not have the right to refuse to consider and sign an application for additional leave submitted by the above categories of employees.

Management refusal to go on vacation

A refusal to grant leave to an employee may be made when he submits an application for:

Weekends “at your own expense” (another name for this type of leave is administrative; you can read more about it);
Paid leave provided outside of the schedule approved by management;
Vacation followed by dismissal.

Appealing an illegal decision

If the employer refuses to provide leave, and the employee is convinced that such a decision is unfounded, he has the right to appeal the actions of management to the Labor Inspectorate.

Appeal procedure:

Drawing up 2 applications requesting leave.
Sending one letter to the employer (by registered mail so that notice remains), submitting the second application to the Labor Inspectorate.
Making a photocopy of the approved vacation schedule and sending it to the Labor Inspectorate inspector.

In 70% of cases the case is resolved pre-trial. If an employee believes that the body monitoring the implementation of labor legislation has not taken the necessary actions to protect his rights, he has the opportunity to go to court to resolve the conflict.

Employee refusal to go on vacation

To answer whether an employee can refuse leave, you need to make sure whether the employer has met the following conditions:

Timely and correct accrual of vacation funds;
The employee receives 14 days notice of the start of vacation.

If these points are violated, the employee may refuse to go on vacation. He submits a corresponding application to management, on the basis of which the time for its submission is postponed.

Art. 126 of the Labor Code of the Russian Federation establishes that when annual paid leave is postponed to the next year, the employer pays monetary compensation. It is due for that part of the vacation that exceeds 28 calendar days (the minimum duration of vacation established by federal law).

If you need additional advice, ask your questions in the comments to the article.

The right to annual paid leave in our country is guaranteed to every employee by law. Articles of the Labor Code regulate the rules and all the nuances relating to vacations, as well as their transfer or refusal to provide certain types for some reason. The solution to the issue of a possible refusal by an employer to leave a subordinate depends on the specific situation. The general rule is: refusal of a timely submitted and correctly completed application is a violation of the right to rest and is therefore illegal.

But if the employer still refuses leave, what should you do? In the absence of proper grounds for this, his actions are subject to appeal under the law.

How is annual leave granted?

Chapter 19 of the Labor Code of the Russian Federation “regulates” holidays. Employees whose work experience in the company exceeds 6 months can take advantage of the right to take legal rest. After this period, the employee may be granted a vacation at his request, or it may be included in the vacation schedule for the next calendar year. It is this document that regulates the procedure for providing annual paid leave in a particular organization.

Such a schedule is drawn up at each enterprise or institution at the end of the current year. It must be approved no later than December 17. All employees are introduced to the vacation schedule against signature.

Can early leave be denied?

If an employee decides to take a break before the end of his six-month period of work, can the employer refuse leave and in what case? This occurs when the employee does not fall into any of the benefit categories listed below.

Those who are on the list of beneficiaries can go on their first vacation before the end of the six-month working period.

Who are these same beneficiaries? The right to go on early leave belongs to:

1. For minors.

2. Women going on a “planned” maternity leave.

3. For those who have adopted a small child (up to 3 months).

4. Husbands of women “on maternity leave.”

5. Part-time workers, if during this period of time there is a vacation at the main place of work.

6. Wives of military personnel who are entitled to leave at the same time as their husbands.

Who else belongs to the preferential category?

Additionally we are talking about:

1. Veterans and disabled people of war.

2. Victims of the Chernobyl accident.

3. Heroes of Russia, Socialist Labor, USSR.

4. Honorary donors.

5. Victims at the training ground in Semipalatinsk.

If you do not belong to one of the listed preferential categories, but you need leave, say, for health reasons or for family reasons, the law does not prohibit granting the right to rest to such an employee. But it should be understood that this action relates to the rights, and not the obligations, of the employer. If he complies with the procedure for granting annual paid leave, the law does not have the right to oblige him to provide an ordinary employee (not a benefit recipient) with rest before completing six months of work experience.

Is it possible to refuse scheduled leave?

For each calendar year, a schedule of planned vacations with the order of their provision is drawn up and approved at the very end of the current year - in December. The approved document is binding on both parties - the employer and the employee. Can an employer refuse leave contrary to the approved deadlines, citing the impossibility of replacement or other reasons important for production? How legal are his actions?

From a formal point of view, such a decision is contrary to labor legislation. In practice, management is given the right to postpone vacation to another time. This is done only when such an alternative is understood by the vacationer himself. That is, this action complies with the law if the employee agrees with the proposal to transfer.

Some nuances

A similar transfer of vacation is legally possible to the next year. But here we should not forget about the prohibition of a two-year period of work without official rest. In addition, vacations for minor workers are not transferred even if they consent.

Can an employer refuse leave without offering a transfer? Definitely not. The law strictly prohibits refusal in the case of an officially drawn up and signed schedule.

But this does not apply to situations in which subordinates request leave on other dates that are not agreed upon in documents. If an application for leave “out of turn” is submitted without special grounds, this may become the reason for a completely legitimate refusal.

Sometimes we are talking about dividing annual paid leave into parts. But at least one of them should not be shorter than 14 days.

Instead of rest - compensation?

Is it possible to reach an agreement like this - the manager refuses the vacation, but in return offers to pay compensation in money for the entire period. According to the law, this is impossible. Although the Code provides for the option of paying monetary compensation in exchange for the unrealized right to rest, payment in cash is only allowed for time that exceeds the annual mandatory period of 28 calendar days.

For example, when on vacation lasting 35 days, the employee at will has the right to receive compensation for a period of 7 days. And, let us remind you once again, such a replacement vacation days money can only take place on the initiative of the employee, and not the authorities.

Leave without pay - sample and important nuances

The so-called administrative (or unpaid) leave can be taken by an employee at any time. This does not depend on the length of work experience. Payment is not saved in this case. To obtain one, the employee should send an application to the employer with a request and, most importantly, a request-justification, that is, explain the need for it. Refusal or consent depends on how important the employee’s motivation seems to management.

Is it possible to refuse leave without pay? Yes, unless both of the following conditions are met:

1. Citizens belong to the category of those who have the right to the mandatory provision of such administrative leave.

2. The limit of days “without pay” regulated by law has not yet been exhausted by them.

1. Participants of the Second World War. For them, the annual limit on the duration of administrative leave is 35 days.

2. Working disabled people - the same period for them is 60 days.

3. To those who have achieved retirement age. If the pensioner continues to perform work duties, he is granted the right to annual leave without pay for 14 days.

4. Widows or widowers of those killed in service or as a result of injury, illness, injury that occurred due to a work-related reason. Here the limit is also 14 days.

5. Five days annually must be given to someone who has had the birth (death, marriage) of a close relative.

This list, established by Article 128 of the Code, is not exhaustive. Additional guarantees in social sphere possible in separate legislative acts and internal regulatory documents employer companies. Most often, employees are rarely denied leave at their own expense.

Let's talk about holidays for women

Now we are talking about and concerns pregnant women and young mothers who are going to workplace. These persons belong to the category of employees protected by law.

According to the Labor Code, all women are guaranteed the right to use maternity leave, as well as long-term leave to care for a child up to the age of three. But in real conditions, the rights of pregnant women and young mothers are very, very often violated.

Can they not allow me to go on another vacation on the eve of maternity leave?

Can an employer refuse leave to a pregnant employee about to go on maternity leave, citing the upcoming maternity leave (and such situations are not uncommon)? It should be clearly understood that such a refusal refers to the most serious violations of labor legislation.

In fact, the fact of pregnancy “works” not for the employer, but for the employee. She becomes a “beneficiary” and can request to receive next vacation off schedule.

Completely legal and very convenient for expectant mother is the option of going on maternity leave immediately after the next vacation. If management refuses to implement such an option, this already gives the right to appeal to higher authorities.

Unfortunately, it is impossible to give such an unambiguously positive answer to the question of whether it is possible for a pregnant woman to be denied another leave in the most general case (when we are not yet talking about maternity leave). An employer may not allow an adult employee to go on vacation outside the agreed schedule. However, a pregnant woman enjoys additional privileges. For example, it is impossible to fire her for absenteeism.

Can management refuse to let an employee go on maternity leave?

What is it? In fact, it consists of two legally unequal parts - maternity leave and long-term leave provided to care for a child. The first as such does not apply to vacations.

The basis for its provision and payment is sick leave disability. That is why refusal to provide such a period of rest is impossible in principle.

Leave to care for a child, according to general rules, is granted until the child reaches three years of age. Their duration is not necessarily exactly three years. A woman has the right to apply for such leave on any day of the specified period. The vacation ends automatically on the next day (working day) after the baby’s third birthday.

It can be provided not only to the mother, but also to any person who actually cares for the child. At the same time, payment (quite modest, in the form of a social benefit) is required by law only in the first year and a half.

Quite often (mainly for financial reasons) a young mother is forced to go to work before the baby turns three years old. But sometimes family circumstances she needs to go back on maternity leave. The employer may be against such a decision.

The law determines that such a refusal applies to violations prescribed in the Labor Code social guarantees. That is, by interrupting maternity leave ahead of schedule, a woman is not deprived of the right to go on the same leave again if the need arises.

What refusals are legal?

The bulk of the provisions of labor legislation are aimed at protecting the interests of workers. But it also contains rules that prevent employees from abusing their rights. These include a list of those situations when refusal of leave by the employer is legal.

So, let’s list the reasons why you will be legally denied a vacation at a time that you have chosen for yourself:

1. An employee who does not belong to a preferential category requested leave during the first half of the year of fulfilling his job duties.

2. A properly completed written application (if accepted by the organization) was not submitted on time. There is no need to write an application if vacations are provided according to a predetermined schedule. In this case, it is enough to familiarize the employee in advance - 14 days in advance.

3. If the employee intends to formalize his resignation immediately after the requested leave.

4. If a sufficiently serious production need arises. But, as already mentioned, this basis is used only with the voluntary prior consent of the employee.

If you are refused, be sure to ask the reasons. Knowing them, you can easily figure out how legal the management’s actions are.

Art. 173-177 Labor Code of the Russian Federation: study leave

Such leaves are provided for those citizens who combine study and work. In order for claims to receive such leave to be justified, a number of conditions must be met:

1. This is the employee’s first time obtaining an appropriate level of education. What does this mean practically? If a part-time student who does not yet have a higher education is working, he is entitled to student leave. But with the finished higher education he can apply for such only when studying in a master's or graduate school.

2. If a worker manages to study simultaneously in several educational institutions at once, he writes an application for study leave only for the session in one of them - at the choice of the student himself.

3. When an employee is a part-time worker, he is not entitled to such leave. Study leaves are given exclusively at the main place.

4. It is provided only subject to state accreditation of the educational institution where the employee receives his education.

5. A mandatory document attached to the application for study leave is a summons certificate issued by the educational institution.

6. The duration of such leave must be within the established limit. It is possible to exceed it, but only by mutual agreement with the employer.

If all of the above conditions are met on the part of the employee, but nevertheless he is denied student leave, the actions of his superiors can be considered a violation of labor legislation, and it can be appealed in the prescribed manner.

Photo by Alena Tulyakova, news agency "Clerk.Ru"

At the end of 2015, we all approved the vacation schedule for 2016. From January 1, it became a mandatory document for both employers and employees. This rule established by Art. 123 of the Labor Code of the Russian Federation, allows the employer to plan the production process, and employees - their rest. However, for some reasons individual employees You may need vacation at a time other than that indicated on the schedule. What to do in this case? Is an employer always obligated to satisfy an employee’s request for leave at a different time or leave of a different duration? How to adjust the vacation schedule and what documents to formalize the changes?

A little about vacation

Each employee Art. 114 of the Labor Code of the Russian Federation guarantees annual paid leave of at least 28 calendar days. Annual main paid leave lasting more than 28 calendar days (extended main leave) is provided to employees in accordance with the Labor Code of the Russian Federation and other federal laws (Article 115 of the Labor Code of the Russian Federation).

In addition to the basic paid leave, employees of some categories are entitled to additional paid leave. It is provided either for the conditions in which the employee works (for example, for hazardous working conditions), or for the work schedule (for example, for irregular working hours), or on the grounds established by local regulations, a collective agreement (for example, for length of service at enterprise).

Paid leave, consisting of basic and additional leave, must be provided to the employee annually. The right to use vacation for the first year of work arises after six months of continuous work with a given employer. Leave for the second and subsequent years of work can be provided at any time of the working year in accordance with the order of provision of annual paid leave established by a given employer (Article 122 of the Labor Code of the Russian Federation).

By agreement between the employee and the employer, annual paid leave can be divided into parts, and at least one of the parts of this leave must be at least 14 calendar days (Article 125 of the Labor Code of the Russian Federation).

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 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 transfer of leave. In such a situation, the employer cannot refuse the employee and is obliged to satisfy his request - cancel the order to grant leave and take into account the employee’s opinion when granting leave 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.

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 the written application of the employee, is also obliged to postpone the annual paid leave to another date, agreed with the employee.

Please note

Even with a 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 ruling 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 the 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 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 of employees to postpone the date of vacation are unacceptable (Appeal ruling of the Supreme Court 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.

Is the employer obligated to grant the application?

General rule

By general rule the employer is not obliged to satisfy the employee’s request to postpone the vacation, if it is not related to the reasons mentioned in Art. 124 Labor Code of the Russian Federation. If an employee, without waiting for the manager’s resolution, stops going to work, this may be regarded as an unauthorized leave. Accordingly, absenteeism occurs and dismissal is possible. Let's look at an example from judicial practice. I. worked as a leading advertising specialist, but on December 26, 2014 she was fired for absenteeism under paragraphs. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation. She believed that the dismissal was illegal, since the employer unlawfully refused to provide her with leave for the period from 01/09/2013 to 01/09/2015. The court found that I. asked to be granted leave from December 16, 2014 to February 5, 2015 (duration - 44 days), the application was not signed by the employer and the plaintiff was not granted leave. However, as of December 16, 2014, I. stopped going to work and did not dispute this fact.

I. believed that the employer’s refusal violated her labor rights, since failure to provide leave for two consecutive years is prohibited by the Labor Code. Since the application for leave was not signed by the employer and the order for leave was not issued, the court came to the conclusion that December 16 and the following days were working days, I.’s unauthorized departure on leave was correctly regarded by the employer as absenteeism. The court considered I.’s arguments that she had not been granted leave for two years and that the employer’s refusal to provide leave was illegal, since the refusal to provide I.’s leave was not appealed in court (Appeal ruling of the Moscow City Court dated 09.18.2015 in case No. 33-33811/2015).

However, nothing prevents the employer from meeting the employee halfway and satisfying his request for leave at a time other than that specified in the schedule.

What are the employer's actions? For example, according to the schedule, vacation is scheduled for the period from 04/04/2016 to 04/24/2016. The employee writes a statement in which he requests leave from 02/01/2016 to 02/21/2016. If the employer, assessing the production process, considered that the absence of the employee during the period specified in the application will not significantly affect the work of the organization, and decided to grant the request, he needs to put a resolution on the application “Prepare a draft order for the provision of leave from 02/01/2016 to 02/21/2016 " If the employer does not agree to provide leave on the specified dates or agrees to provide, but only part of the leave, the resolution “Refuse” is affixed to the employee’s application.

Exception to the Rule

Quite often from general rule There are exceptions. Here, too, we couldn’t do without them.

Firstly, employees of certain categories are guaranteed by law annual leave at a time convenient for them. For example, according to Part 4 of Art. 123 of the Labor Code of the Russian Federation, 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. And by virtue of Art. 126 of the Labor Code of the Russian Federation, if an employee is recalled from vacation, the part not used in connection with this must be provided to him at his choice at a time convenient for him during the current working year or added to the vacation for the next working year. Of course, these are not all exceptions to the rule. There are also war invalids, combat veterans, honorary donors, etc.

If employees who are granted by law the right to use vacation at a time convenient for them write an application asking for vacation during a period other than that fixed in the approved vacation schedule, the employer does not have the right to refuse to satisfy such an application. This is confirmed judicial practice. Thus, G.V. served as a senior detective since 2011. Being a combat veteran (he has a certificate), he submitted an application to his boss for the next leave from 06/17/2013 for 2013 due to his mother’s illness. On the specified date, he did not show up for work and the employer initiated an internal audit. As a result of the inspection, it was established that G.V. committed a gross violation of official discipline - absenteeism.

The plaintiff believed that the dismissal was made illegally, since his right as a combat veteran to be granted leave under paragraphs. 11 clause 1 art. 16 Federal Law dated January 12, 1995 No. 5-FZ “On Veterans” at a time convenient for him. The court, resolving the dispute, indicated that the refusal to grant leave was not based on the law and the plaintiff’s being on leave cannot be considered an unexcused reason for absence from the workplace. Therefore, G.V. was reinstated at work (Appeal ruling of the Moscow City Court dated May 14, 2015 in case No. 33-8626).

Secondly, the time for using vacation can be tied to a specific event. In particular, on the basis of Art. 286 of the Labor Code of the Russian Federation, a part-time employee is granted annual leave simultaneously with leave for his main job. This rule is aimed at implementing the right to rest exclusively for part-time workers and, in its legal meaning, provides for the emergence of an obligation to simultaneously go on leave at the main place of work and at a part-time job only for a part-time worker if he exercises the right to leave with the employer for whom he performs work. part-time duties (Appeal ruling of the Novosibirsk Regional Court dated September 1, 2015 in case No. 33-7502/2015).

Accordingly, denying a part-time worker leave from the date specified in the application, if there is confirmation of the provision of leave at the main place of work, is unlawful.

Individual situations

Two situations stand out when vacation is granted only at the request of the employee, regardless of the vacation schedule:

Vacation for the first year of work. According to Part 2 of Art. 122 of the Labor Code of the Russian Federation, the right to use vacation for the first year of work arises for an employee after six months of his continuous work with this employer. From this formulation we can conclude that if an employee exercises his right, the employer does not have the right to refuse him.

Here the question arises: is it necessary to notify an employee about vacation? Indeed, what if he asks literally tomorrow for leave and the employer doesn’t mind? Labor Code does not establish exceptions to the rule - the employee must be notified of the start time of the vacation at least two weeks before it begins. But the notification loses its meaning in a situation where the employee himself determined the date of rest, and the employer agreed to it. Since the absence of such a notice does not have negative consequences for either the employee or the employer, we believe that it is possible to do without it.

However, with the payment of vacation pay in this case, not everything is simple. Based on Art. 136 Labor Code of the Russian Federation Vacation payment is made no later than three days before it starts. Violation of this deadline will definitely lead to negative consequences for the employer: for him it occurs financial liability. In particular, by virtue of Art. 236 of the Labor Code of the Russian Federation in case of violation by the employer deadline vacation pay, the employer is obliged to pay vacation pay with interest (monetary compensation) in an amount not lower than 1/300 of the refinancing rate of the Central Bank of the Russian Federation in force at that time from amounts not paid on time for each day of delay, starting from the next day after the established payment deadline until the day of actual payment inclusive.

What is the way out?

Firstly, you can invite the employee to rewrite the application, changing the start date of the vacation, so that the employer has the opportunity to pay for the vacation in accordance with the requirements of Art. 136 Labor Code of the Russian Federation.

Secondly, you can offer to write two statements to the employee. One is for the provision of leave without pay, and the second is for annual paid leave. The duration of unpaid leave in this case will be four days (for example, the employee wrote on December 11 an application for leave from December 14. In in this case, if the accounting department tries, vacation pay can be paid to the employee on the 14th or 15th, and he can go on annual leave from December 17 or 18. It turns out that there will be two applications dated December 11 - one for the provision of unpaid leave from the 14th to the 16th, the second for the provision of annual leave from December 17).

Thirdly, you can grant the employee vacation from the date specified in the application by calculating and paying not only vacation pay, but also monetary compensation for the delay.

FYI

The employer has the right to refuse an application for vacation not according to the vacation schedule, justifying it in Part 9 of Art. 136 Labor Code of the Russian Federation. Thus, the Chelyabinsk Regional Court, in the Appeal ruling dated March 19, 2015 in case No. 11-1771/2015, recognized as legal the employer’s refusal to provide leave upon application, since although the employee was not familiar with the schedule, he had the right to apply for leave on any date , having agreed with the employer. Due to the fact that the employer could not provide vacation without violating the payment terms, the refusal to provide vacation did not violate the employee’s rights.

Vacation followed by dismissal. By virtue of Part 2 of Art. 127 of the Labor Code of the Russian Federation upon a written application from the employee unused vacations may be provided to him with subsequent dismissal (except for cases of dismissal for guilty actions).

As can be seen from the wording, providing such leave is a right, not an obligation, of the employer. If he does not have the opportunity to provide rest, he may refuse the employee. In this case, the employer must additionally accrue compensation for unused vacation.

Registration of changes in the schedule

Since in the cases discussed above, schedule correction cannot be avoided, we will give several examples of how to formalize certain changes. But first, let us remind you that a vacation schedule can be drawn up:

according to the unified form T-7 (Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1 “On approval of unified forms of primary accounting documentation for recording labor and its payment”);
in a free form developed by the organization (Part 2 of Article 9 of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting”).

Changes in the schedule are made mainly in columns 8 to 10.

For example, if vacation is postponed at the request of an employee due to temporary disability, the schedule will look like this.

		rescheduling vacation		Note
planned	actual	base (document)	date of expected vacation

14.12.2015		Application for transfer of leave dated December 22, 2015 (certificate of incapacity for work No. 987456123258 dated December 16, 2015)	08.02.2016	Vacation is postponed due to temporary incapacity, order dated December 16, 2015 No. 4

Then in column 7 you will also need to indicate the actual date of going on vacation.

If the employer meets the employee halfway and deviates from the vacation schedule at his request, the format may be as follows:

		rescheduling vacation		Note
planned	actual	base (document)	date of expected vacation

07.09.2015	14.12.2015	Order dated 08/28/2015 No. 37	14.12.2015	Employee statement dated 08/28/2015

Note that if an employee quits and instead of vacation receives compensation for all unused days, this must also be noted in the vacation schedule. Such an entry might look like this:

		rescheduling vacation		Note
planned	actual	base (document)	date of expected vacation

14.12.2015		Order of dismissal dated November 18, 2015 No. 41		The employee was dismissed on November 18, 2015 with payment of compensation for 19 days of unused annual leave

In conclusion

The article discusses situations when an employer is obliged to postpone the annual paid leave of an employee who has written an application with such a request, and when not. In any case, when deciding whether to satisfy an employee’s application, pay attention to the production process (whether the postponement of vacation will negatively affect it), the employer’s ability to pay vacation pay (in compliance with the deadlines established by Article 136 of the Labor Code of the Russian Federation), and, of course , remember about situations when it is impossible to refuse a transfer (for example, in case of late notification of the start of vacation or in case of illness during vacation). Fill out all the documents, register orders, statements, then there will be much fewer disputes with employees. Good luck.

When figuring out whether an employer can refuse leave at his own expense, many employees realize that they may not get an unplanned day off. After all, in most cases last word remains with the employer.

General characteristics

An employee can receive leave in accordance with Article 19 of the Labor Code of the Russian Federation. Almost all of their types are united by the fact that the employee retains his salary. And only vacation at your own expense means that payments for this period are temporarily stopped. Also, this period is not taken into account when drawing up a vacation schedule, since the employer cannot plan in advance when an employee will need a day off. Vacation at your own expense can be included in the schedule only optionally.

Based on this, such leave is conditionally divided into two types:

mandatory leave, the provision of which does not depend on the opinion of the boss;
optional, which an employee can take only with the consent of the manager.

Regardless of this, in order to go on vacation at his own expense, the employee must complete the registration procedure.

Deadlines

If an employee has the right to compulsory leave at his own expense, then its duration is regulated by established standards. He can use these days at once, break the weekend into parts, etc. If the provision of vacation depends on the employer, then its duration depends on the agreement of the parties. By law, for government employees the maximum period cannot exceed 1 year. The subordinate also has the right to return from such leave at any time by notifying his superior in writing.

In the event that a subordinate entitled to compulsory leave without pay did not use it during the calendar year, the remaining days are not carried over to the next year.

Who is eligible

Labor legislation contains a list of persons who have the right to use vacation at their own expense:

Disabled people (no more than 60 days).
Veterans of the Great Patriotic War (no more than 35 days).
Working pensioners (up to 14 days).
Heroes of the Russian Federation and the USSR (up to 21 days).

Read also Displaying maternity leave on the time sheet

Good reasons

If a subordinate does not have exclusive rights to compulsory leave at his own expense, he can still take it. This requires only a good reason. Whether the employer has the right not to release an employee if he decides that the reason is not valid is stated in Art. 128 Labor Code of the Russian Federation.

Typically, leave at your own expense is required in the following cases:

death of a relative;
son's conscription into the army;
outlet;
moving;
participation in conferences, etc.

In other words, employees have the right to take unpaid leave for family reasons. In addition, an employee may interrupt his work activity without saving his salary for:

4 months to defend the thesis.
15 days to pass the exam or enter an educational institution.
1–2 months to pass the state exam.

Most often, conflicts between an employee and an employer arise regarding leave due to reasons such as: the birth of a child, a wedding, etc. That is, very personal family events. Employers are in no hurry to refuse employees, but only if certain conditions are met.

First, the time off must coincide with the date of the event, so you cannot take a day off several months after the birth of the child. Secondly, dividing such leave into parts is prohibited. But the law does not prohibit the use of such good reasons to arrange days off without pay several times a year.

Employer's refusal

It is imperative to know whether the employer has the right to refuse such a request to an employee and what to do after the refusal. So, the boss may ignore the request for leave without pay for the following reasons:

The reason for leave is not valid and the absence of the employee will cause serious harm to the organization.
The reason was recognized as valid, but the subordinate could not confirm it with documents.

The first thing the employee must do is request a written refusal. This will allow you to subsequently challenge the employer’s decision.

But this is worth doing if the reason for the refusal is truly unfounded, otherwise the employee will only waste time. You should contact labor inspection or court. In court, the plaintiff can recover moral compensation from the boss for refusing to provide several days of rest.

Read also Features of registering early exit from parental leave for a child under 3 years old

Vacation registration

In order to receive leave without pay, you must adhere to the following instructions:

Drawing up an application. It is written in almost the same way as an application for annual paid leave. But there are still nuances. For example, you must indicate the reason why a day off is required. And, of course, we must not forget about the dates so that the employer understands for what period of time the subordinate is leaving.
Providing to the manager. This can be done in person, but it is better to transfer it through a secretary or personnel officer. Then these documents will be entered in a special journal, with the help of which it will be possible to prove the filing of the application. You can also make a copy.
Creating an order. This is the responsibility of the manager, who, based on the application, documents his decision. To create an order, the T-6 form is used, but the law does not prohibit the use of document forms created in the company.
Then the data on leave without pay is entered into the subordinate’s personal card.

It is advisable to attach documents confirming the reason for leaving work for a certain period of time with the application. This may be a call to a session and other official documents. If the necessary papers are received later (marriage certificate, birth certificate, etc.), then the employer should be notified about this.

Naturally, the employer does not make any calculations for this type of leave. After the registration procedure, the employee has the right to take a day off without pay. If he wants to go back to work ahead of schedule, then he will have to write another application addressed to the director.

As for the recall of an employee from vacation by his employer, this is possible with the consent of the subordinate himself. It is prohibited to interrupt the rest of the following categories of workers:

minors;
pregnant women;
employees whose work activity associated with harmful and difficult conditions.

The interruption of his holiday by the employer is illegal and can be challenged.

Leave without permission

It is prohibited to leave work without the employer's consent, but many workers disagree with this statement. And if the boss refuses to provide leave without reason, then you can do the following:

Obtain from an accountant or personnel officer a document confirming that the submitted application was accepted for consideration.
Resubmit the application by making a copy and writing down the number under which it was registered.