From time to time, any employee of a firm or enterprise may need unscheduled leave, and not every employer will agree to provide a break with pay .

In such situations, you can apply for unpaid leave: its duration depends on the specific case and agreement with the authorities, the registration procedure is regulated by Article 128 of the Labor Code of the Russian Federation.

According to the law, leave without pay can be taken if the following conditions are met:

1. Coordination with the employer : the authorities must consider the reason why the employee requires a long absence, and agree, if it is valid, or refuse the employee.
2. No contradictions to legislative theses : there are a number of categories of workers that the employer does not have the right to refuse.
3. The initiative in registration should come only from the employee : if the employer offers to take time off at his own expense, for example, with a decrease in the amount of work, this will be a violation of the law.

Important! In order to take leave at their own expense and receive approval, the employee must report the reason for the absence . If she is respectful, they will approve the leave, keeping the job or taking another employee for the period of absence.

How to apply for unpaid holidays?

For it is necessary to draw up an application in free form : it is written by hand or typed on a computer on an A4 sheet.

In order to take time off at your own expense, you must specify the following data in the application:

1. Information about the applicant, full name and position of the employer.
2. Title "Statement".
3. Please provide leave, indicating the reason and its duration.
4. Date and signature with decryption.

Having drawn up the document, the employee sends it to the employer, handing it over personally or by mail with acknowledgment of receipt.

If the request does not raise objections, he notes his consent on the application in the form of an appropriate entry (for example, “Vacation agreed”). Based on this document, the personnel department prepares an order to grant unpaid leave (for this, the T-6 form or another form adopted by the regulations of a particular organization is used). .

The order form indicates the number of days without pay, during which the employee will be absent, and the start and end dates.

Some employees decide to go on vacation without pay, without waiting for them to be acquainted with the order: in this case, there is a risk that the employer will issue days of absence as absenteeism, which will negatively affect wages, resulting in penalties.

The order must be signed by the head or an authorized employee, the employee who takes a vacation at his own expense must familiarize himself with the document and put a signature confirming consent.

Important! If the company employs remote employees , then for them registration at their own expense can be performed electronically with digital signatures.

Information about the absence for a good reason is required to be entered in the employee's personal card.

Can I get 1 month leave?

The duration of absence without pay depends on the specific reason and the nature of the agreement between the employee and the employer. By agreement, you can take a month's leave without pay .

In addition, in a number of situations, the authorities do not have the right to refuse to provide rest for 1 month if:

1. The employee is a veteran of the Great Patriotic War : according to article 128 of the Labor Code (part 2), such persons can apply for unpaid leave for up to 35 days a year.
2. An employee has a disability of any group - there is a right to unpaid days off for up to 2 months.
3. An employee is studying at a university and needs leave to prepare and take final exams: the law provides for the possibility of being absent from work for up to 30 calendar days, depending on the type of education, the basis for the request.

Can I take a vacation at my own expense for 3 months?

Since the law does not establish absence without pay, the vacation period can be 3 months or more. There is a restriction only for civil servants: they can take no more than 12 months at their own expense.

In addition, long unpaid leave is due to citizens studying at a university and preparing for graduation : according to the Labor Code, up to 4 months are allotted for the preparation and defense of the WRC, along with the final exams.

Features of receiving for family reasons

The most common reason for requesting a vacation at one's own expense is family circumstances. How to take the weekend in this case?

The possibility of going on unpaid leave according to this wording is indicated in the first part of Article 128 of the Labor Code .

In this case , the employee indicates the reason in the application in exactly this form - “family circumstances” , decoding is not mandatory.

Many large companies require proof of family circumstances, which will be attached to the application, but in a number of medium and small firms, it is enough for the employee to verbally notify the employer of the exact reason.

After consideration, the responsible officer or director puts a resolution on the text of the application, with a positive answer, an order is prepared in the T-6 form. This document comes into force only after the departing employee signs in the appropriate column.

As a rule, the duration of leave at one's own expense for family reasons does not exceed five days .

How to leave if they don't let you go?

If the employer considers the reason for the unpaid absence to be unreasonable, he may not let him go on time off at his own expense.

The Labor Code of the Russian Federation does not contain a list of reasons that can be considered valid . Therefore, the employer decides the issue of unpaid leave on an individual basis.

If he considers the reason disrespectful, he may not let him go on time off without pay. However, the employee can challenge this decision in court.

The director has the right not to release the employee during the liquidation of the company .

In addition, citizens of the following categories must be released at their own expense :

• Participants of the Second World War (up to 35 days).
• Working pensioners (up to 14 days).
• Relatives of military personnel, persons working in law enforcement agencies, fire service, Ministry of Emergency Situations (up to 14 days).
• Employed disabled people (up to 2 months).
• Persons who need leave in case of marriage registration, death of relatives or birth of a child (up to 5 days).

Important! If the employee is not allowed to go on vacation at his own expense, then he has the right to sue the employer .

If the judiciary recognizes the refusal of the latter to provide days off without pay as illegal, the company will face an administrative fine.

After parental leave

The legislation of the Russian Federation provides for leave for 3 years, which is provided to one of the parents to care for the child (as a rule, young mothers use the opportunity). In some cases, it is unprofitable for an employee to immediately go to work after the end of maternity leave: for example, if a woman has to leave in the summer, and a child can be enrolled in a kindergarten only in the fall. Is it possible in this case to take leave without pay immediately after caring for a child?

In such cases , you can agree with the employer on additional leave , which, unlike maternity leave, will no longer be paid, but will allow the young mother to organize her time most conveniently. Usually, during the absence of a replacement for an employee, the authorities hire a temporary worker, and if he agrees to work in a position longer, there are no problems with obtaining additional free time at his own expense.

On probation

Can I take unpaid days on probation? says that during the testing period of an employee, all the main and secondary clauses of labor legislation and other legal acts relating to the labor industry apply to him.

Periods when the employee was absent do not count as part of the probationary period . Thus, leave at one's own expense during this period is possible, however, after returning to work, the test is extended by the number of days missed.

Dear readers! The article describes typical situations, but each case is unique. If you want to know how to solve your particular problem , use the online consultant in the lower right corner of the site or

Whether the employer is obliged to provide the employee with leave at his own expense, how to properly arrange a day off without pay, how many days such leave is provided for by the labor code, and where to turn in case of violation of the employee's rights - we will talk about all this in more detail.

Reasons and conditions for granting

In this case, it means exemption from work, in which the vacationer is not paid his average earnings, but the job is retained . It is very relevant in a situation where the employee has already been or does not have enough time to resolve any personal issues.

The initiative to provide such time off may come solely from the employee, while forcing the employer of the employee to write an application for unpaid leave is considered a violation of labor rights.

A specific list of circumstances that may serve as a basis for granting days without pay is not regulated by labor legislation. This leave is granted for family reasons or for other good reasons.

The Labor Code gives the employer the right to assess how valid the reasons indicated in the application are.

During the adoption of the collective agreement, reasons are stipulated that can be recognized as valid when providing. This ensures an objective approach from management.

Providing this type of time off is the right of the employer. If the employer is obliged to provide annual paid leave, then the application for an unpaid day off has the right not to agree .

When are days off required?

Despite the fact that the employer is not bound by the obligation to provide days without pay to any subordinate, there is a legislatively fixed group of workers whose refusal will be regarded as a violation.

• employees who are participants in the war. This category is gradually losing relevance. Such employees are usually already retired;
• workers who have already earned a pension, but are still working;
• employees who died in the line of duty, as well as relatives of those who died from injuries or illnesses related to the line of duty;
• employees who have

In addition to this category of workers, whose right is guaranteed by the legislator, there are a number of cases in which the employer is obliged to provide days without pay .

These are the following circumstances:

• baby birth,
• marriage,
• death of a loved one.

The employer is not bound to grant days without pay to any subordinate.

If the leave is not agreed

Can they refuse leave without pay? The above categories, as well as employees under the aforementioned life circumstances, cannot. However, the rights of the worker are not always respected . What is the right thing to do in such a situation.

To protect your violated rights, you can contact:

• your organization's labor dispute committee (if any);
• state labor inspectorate;
• trade union committee (if any);

Provision procedure

When can you take vacation time? In order to receive leave at his own expense, the worker must express this request in writing. To do this, you must contact the employer with an application for unpaid leave .

If the employee has an immediate supervisor (for example, the head of a workshop, department, service), before contacting the employer or the person who decides personnel issues, it is necessary to obtain the consent of the immediate supervisor. Such permission is issued by the approval visa.

Attention! If an employee is ill while on unpaid time off and a sick leave certificate is opened, sick leave will not be paid. If the employee must start work, due to the end of time off at his own expense, and the sick leave continues, only the time spent at work will be paid.

You must contact your employer to apply for unpaid leave.

To clarify the question of how to take a vacation at your own expense and write an application, you should contact the personnel department of the enterprise.

The text of the application must contain:

• the number of days off at their own expense;
• the number from which the employee wishes to receive time off;
• reason for the need.

To confirm the validity of the reason, it is better to attach copies of supporting documents along with the application (certificate from the clinic about the condition of the sick relative and the need for outside care, a copy of the marriage application to the registry office). Some documents, due to the need for the urgency of the holiday, in agreement with the employer can be provided later.

After the employer agrees on an application for unpaid leave, the personnel department issues an order, which the employee must familiarize himself with, date and sign.

Duration

The maximum duration of leave without pay, as well as the minimum number of days, is determined based on an agreement between the two parties to the employment relationship - the employer and the employee.

Important! When taking into account the number of days giving the right to annual paid rest, only 14 days of time off without wages in the employee's working year are taken into account.

Visually, the situation is as follows. The employee came to work at the enterprise on April 15, 2017. He will receive annual paid leave for the period from April 15, 2017 to April 14, 2018. This is called his working year (for each employee, such a year is individual and is calculated from the date of employment).

If during a given work year the employer gives him 20 unpaid days off, only 14 of them will be included in that work year. The remaining 6 workers do not "earn" a well-deserved rest.

In practice, this means that the working year of the worker will be shifted by these 6 days. As a result, the period for which he will receive paid rest days will be increased.

Categories of employees who are provided with time off at their own expense without the need to state reasons to the employer are legally fixed.

The Labor Code also fixes the maximum number of days per year for each category of such workers:

• for employees who took part in the Great Patriotic War - up to 35;
• pensioners working for an employer, relatives of employees who died in the line of duty or as a result of an illness they received in the line of duty - up to 14;
• disabled people - up to 60.

In the event of such circumstances as marriage, the birth of a child or the death of a relative, the employer is legally obliged to provide up to 5 days without deduction of wages.

However, this has nothing to do with the maximum duration of rest days without pay. This is a legally guaranteed limit on the number of days that the employer is obliged to provide them without considering the reasons. That is, by agreement of the parties, the number of days can be increased.

There are situations where it may take days to resolve family issues for several reasons at the same time. For example, the birth of a child and the death of a relative. Under such circumstances, leave at one's own expense under the labor code is granted for each case .

The collective agreement may determine how many days you can take at your own expense in each case. Such regulation at the local level will allow the worker and the employer to avoid conflict situations and ensure the observance of the rights of workers.

Attention! Due to the fact that rest days are not paid, pension contributions are not accrued for this period. Consequently, the period itself is not included in the length of service, on the basis of which the pension is calculated.

Return to work

In an ordinary situation, the worker returns to work when the day off at his own expense ends. According to the labor code, the algorithm for entering work earlier than the agreed period is not regulated. Practice went the following way.

Based on the fact that the desire to take advantage of unpaid time off is the initiative of the employee, and the time off itself is the result of an agreement between the employer and the worker, then the reverse procedure has the same patterns.

The employee formalizes his desire to interrupt the days off with a statement, the employer agrees and issues an order to invalidate the previous order to provide days without pay.

In such a situation, the question arises: is it necessary to warn the employer in advance of his intention. There is a certain rationality in this.

An employee under a fixed-term employment contract may be invited to replace the absent employee, or duties may be assigned to the remaining workers. Therefore, the employer must have time, at a minimum, to warn employees about the termination of the contract or the assignment of duties.

The statutory deadline is three days. Therefore, the employee must notify the employer of the termination of the leave without pay before the agreed period at least three days in advance.

Video: At our own expense, if we agree

Providing days off at his own expense is the employee's ability to resolve family and other issues in agreement with the employer. Such unpaid rest is of a contractual and voluntary nature, this applies to its provision and duration.

Some categories of workers have the right to take annual unpaid leave of a certain duration, and at a convenient time for themselves. In the article, we will consider what categories of workers these are, how leave without pay affects the worker's length of service and how to arrange such a leave.

for accountants and chief accountants on OSNO and USN. All requirements of the professional standard "Accountant" are taken into account. Systematize or update knowledge, gain practical skills and find answers to your questions.

Legal justification for granting unpaid leave

In the Labor legislation of the Russian Federation there is a provision according to which the employer in some cases is obliged to provide the employee with unpaid leave (Article 128 of the Labor Code of the Russian Federation).

All cases of mandatory granting of unpaid leave are shown in Table No. 1.

		Length of unpaid leave	Legal rationale
	Participants of the Great Patriotic War	Up to 35 calendar days per year	par. 2 hours 2 tbsp. 128 Labor Code of the Russian Federation
	Working old-age pensioners (by age)	Up to 14 calendar days per year	par. 3 hours 2 tbsp. 128 Labor Code of the Russian Federation
	Parents and wives (husbands) of military personnel, employees of the internal affairs bodies, the federal fire service, customs authorities, employees of institutions and bodies of the penitentiary system who died or died as a result of injury, concussion or injury received in the performance of military service (service), or due to illness associated with military service (service),	Up to 14 calendar days per year	par. 4 hours 2 tbsp. 128 Labor Code of the Russian Federation
	Working disabled people	Up to 60 calendar days per year	par. 5 hours 2 tbsp. 128 Labor Code of the Russian Federation
	Employees in cases of the birth of a child, marriage registration, death of close relatives	Up to 5 calendar days	par. 6 hours 2 tbsp. 128 Labor Code of the Russian Federation
	Spouses of military personnel, if they are granted leave at the same time as their husbands (wives) and the duration of the holidays does not match	Duration of vacation of the spouse (wife) of a serviceman	paragraph 11 of Art. 11 of the Federal Law of May 27, 1998 No. 76-FZ “On the Status of Military Personnel”
	Part-time workers when the duration of the annual leave at the main place of work exceeds the duration of the leave provided for combined work	The number of calendar days of the employee's vacation at the main place of work, exceeding the duration of the vacation for combined work	Part 2 Art. 286 of the Labor Code of the Russian Federation
	Employees whose right to leave without pay is provided for by the labor (collective) agreement of the organization	In accordance with the labor (collective) agreement	par. 7 h. 2 tbsp. 128 Labor Code of the Russian Federation
	Veterans of military operations on the territory of the USSR, Russia and other states	Up to 35 calendar days per year	sub. 11 p. 1 art. 16 of the Federal Law No. 5-FZ of January 12, 1995 "On Veterans"
	Employees sent for training by the employer or self-employed to study under state-accredited bachelor's programs, specialist's programs or master's programs in part-time and part-time forms of study	Entrance tests - 15 calendar days; final certification at the preparatory departments - 15 calendar days; when studying full-time, for passing intermediate certification - 15 calendar days , for preparing and defending a diploma and passing final exams - four months , for passing final state exams - one month	Art. 173 Labor Code of the Russian Federation
	Employees who successfully master educational programs of secondary vocational education in correspondence and part-time forms of education	Entrance tests - 10 calendar days; for full-time education and combining education with work, for passing intermediate certification - 10 calendar days per academic year, for passing the state final certification - up to two months	Art. 174 Labor Code of the Russian Federation

The labor legislation of the Russian Federation allows the employer to grant unpaid leave to the employee upon his written application (due to family obligations and other valid reasons). The duration of such leave is determined by an agreement between the employee and the employer (part 1 of article 128 of the Labor Code of the Russian Federation).

Leave without pay is always the initiative of the employee. If leave without pay is legally established (see Table No. 1), the employer does not have the right to refuse the employee to exercise his labor rights. If leave is granted on the basis of part 1 of article 128 of the Labor Code of the Russian Federation, then the consent of the employer is required.

It is not uncommon for employers to send their employees on leave without pay on their own initiative, citing the financial difficulties of the enterprise, lack of orders, reduced workload and other reasons that are not related to labor legislation. For all these situations, there are other mechanisms: for example, bringing the enterprise to idle time, reducing the number (staff) of employees.

For an employer who sends employees on leave without pay in violation of the requirements of Article 128 of the Labor Code of the Russian Federation, the following administrative sanctions are established (Article 5.27 of the Code of Administrative Offenses of the Russian Federation):

• for officials of the organization - a warning or a fine in the amount of 1,000 to 5,000 rubles (in case of a repeated offense, the fine will be from 10,000 to 20,000 rubles or the official will be disqualified for a period of 1 to 3 years);
• for an individual entrepreneur - a fine from 1,000 to 5,000 rubles (in case of a repeated offense, the fine will be from 10,000 to 20,000 rubles);
• for a legal entity - a fine from 30,000 to 50,000 rubles (a repeated offense will lead the organization to a fine in the amount of 50,000 to 70,000 rubles).

How will leave without pay affect the employee's leave of absence

Employees who use leave without pay should be aware that part of such leave, exceeding 14 calendar days during the working year, is not included in the length of service giving the right to annual paid leave (Article 121 of the Labor Code of the Russian Federation). At the same time, it does not matter whether leave without pay is granted to privileged categories of employees in accordance with Part 2 of Article 128 of the Labor Code of the Russian Federation or leave by agreement between the employee and the employer in accordance with Part 1 of Article 128 of the Labor Code of the Russian Federation.

Let's explain with an example.

On March 1, 2017, a disabled person entered the organization with the right to 60 calendar days of leave without pay (paragraph 5, part 2, article 128 of the Labor Code of the Russian Federation). The first working period during which up to 60 calendar days of unpaid leave can be used:

During the first year of work, the new employee used the right to unpaid leave three times, and the employer granted these leaves:

1. from June 1 to June 20, 2017 - 20 calendar days (Order No. 35 dated May 25, 2017);
2. from November 15 to November 30, 2017 - 16 calendar days (Order No. 57 of November 10, 2017);
3. from February 1 to February 14, 2018 - 14 calendar days (Order No. 21 of January 25, 2018).

Of the 50 calendar days of leave without pay, only 14 calendar days will be included in the length of service giving the right to leave. How will this affect the working period for which the employee is granted annual paid leave?

50 - 14 = 36 calendar days.

The end of the working period should be postponed by 36 calendar days. The working period for which the employee uses his first annual paid leave:

The next work period will begin on April 6, 2018 and end depending on the number of calendar days of unpaid leave that the employee uses in the next work year.

Documentation of unpaid leave

Since leave without pay can only be granted on the basis of an application from the employee, this is the first document drawn up in any form and sent to the employer for approval (part 1 of article 128 of the Labor Code of the Russian Federation) or for familiarization (part 2 of article 128 of the Labor Code of the Russian Federation) .

Based on the employee's application, an order is issued in a unified or independently developed form (Article 9 of the Federal Law of December 6, 2011 No. 402-FZ "On Accounting"). The order is signed by the head, the employee gets acquainted with the order under the signature.

It is very important to reflect information on unpaid leave in a timely and complete manner in the employee’s personal card in form No. T-2, if the organization uses a unified form, or in another accounting document that the organization independently developed and accepted instead of a personal card.

When filling out section VIII "Vacations" of the employee's personal card, each column must be filled in:

• type of vacation;
• work period;
• the number of calendar days of vacation;
• vacation start and end date;
• base.

Let's fill in a fragment of a personal card according to the unified form No. T-2, using the data from the example given in our article.

Type of leave (annual, study, without pay, etc.)	Period work		Number of calendar days of vacation	date		Base
				Beginnings	endings
No payroll _	01.03.2017	28.02.2018		01.06.2017	20.06.2017	Order No. 35 dated 05/25/2017
No payroll _

The Labor Code does not regulate many issues related to the provision of unpaid leave. Can an employee take such leave with subsequent dismissal? Can an employer withdraw an employee from vacation at his own expense? Are vacations cumulative if the employee is entitled to them for several reasons? The answers to these and other questions are in the article.

Before considering the 10 most interesting situations related to the provision of unpaid leave to employees, let's talk about the types of such leaves and the features of their provision.

Three types of vacations at your own expense

Unpaid leave is granted on the basis of written applications from employees. Holidays can be roughly divided into three types. These are vacations, the provision of which:

- right of the employer;

- his duty;

- the obligation of the employer, if it is established in a collective agreement or industry agreement.

What types of vacations are included in each of the above types?

Vacation at own expense for family reasons and other valid reasons

The employer may (but is not obliged) to provide such leave to the employee on the basis of his written application. The duration of the leave is determined by agreement between the employee and the employer (Article 128 of the Labor Code of the Russian Federation). That is, in order for the leave without pay to take place, a written application from the employee and the consent of the employer are required.

Leave without pay for the privileged category of employees

The employer is obliged to provide such leave in accordance with the provisions of Part 2 of Article 128, Articles 173 and 174 of the Labor Code of the Russian Federation, Law of the Russian Federation of January 15, 1993 N 4301-I “On the Status of Heroes of the Russian Federation and Full Cavaliers of the Order of Glory” and federal laws :

- dated 09.01.97 N 5-FZ "On the provision of social guarantees to the Heroes of Socialist Labor and full holders of the Order of Labor Glory";

- dated 27.05.98 N 76-FZ "On the status of a serviceman";

- dated 06.05.2011 N 100-FZ "On voluntary fire protection";

- dated 02.03.2007 N 25-FZ "On municipal service in the Russian Federation";

- dated July 27, 2004 N 79-FZ "On the state civil service of the Russian Federation";

- dated 10.01.2003 N 19-FZ "On the election of the President of the Russian Federation";

- dated 18.05.2005 N 51-FZ "On the election of deputies of the State Duma of the Federal Assembly of the Russian Federation";

- dated 12.06.2002 N 67-FZ "On the basic guarantees of electoral rights and the right to participate in a referendum of citizens of the Russian Federation."

To provide this type of leave, the consent of the employer is not necessary, only a written application from the employee is necessary.

Additional leave at own expense for carers

The provision of such holidays is an additional guarantee for employees with children. The categories of persons who may be granted such leave are listed in Article 263 of the Labor Code of the Russian Federation. The condition for the provision of these holidays must be provided for in the collective agreement or industry agreement.

Additional leave is granted upon a written application of the employee at a convenient time for him. This leave can be added to the annual paid leave or used separately in whole or in parts. The Labor Code does not allow to transfer it to the next working year.

The right to additional leave without pay is granted to employees-parents from the year the child is born to the year the child turns 14 or 18 years old inclusive (Article 263 of the Labor Code of the Russian Federation).

Note. Leave is granted to both parents - employees of the same organization, regardless of whether it is used by the second parent or not (Article 263 of the Labor Code of the Russian Federation).

cheat sheet

To which employees the employer is obliged to provide leave at their own expense upon their written application

Vacation duration	Employee category	Base
1	2	3
Leave granted upon a written application of the employee in accordance with Article 128 of the Russian Federation
Up to 5 calendar days	Employees, including those performing alternative service*, in cases of the birth of a child, marriage registration or death of close relatives	Paragraph 6 of Part 2 of Article 128 of the Labor Code of the Russian Federation
Up to 14 calendar days	Working old-age pensioners (by age)	Paragraph 3 of Part 2 of Article 128 of the Labor Code of the Russian Federation
Parents and wives (husbands) of military personnel who died or died as a result of injury, concussion or injury received in the performance of military service duties, or as a result of a disease associated with military service	Paragraph 4 of Part 2 of Article 128 of the Labor Code of the Russian Federation
Up to 60 calendar days	Working disabled people	Paragraph 5 of Part 2 of Article 128 of the Labor Code of the Russian Federation
Estimated number of calendar days	Part-time workers, if the duration of annual leave at the main place of work is longer than part-time	Part 2 of Article 286 of the Labor Code of the Russian Federation
Spouses of military personnel, if the duration of their annual leave is less than the duration of the spouse's leave	Clause 11 of Article 11 of Federal Law No. 76-FZ of May 27, 1998
No more than 6 months in total with paid annual leave	Employees working in the regions of the Far North and areas equivalent to them, for travel to the place of use of the vacation and back	Part 3 of Article 322 of the Labor Code of the Russian Federation
Leave granted when combining work with study in educational institutions of higher professional education
Up to 15 calendar days	Employees who are admitted to entrance examinations to educational institutions of higher professional education	Paragraph 2 of Part 2 of Article 173 of the Labor Code of the Russian Federation
Students of the preparatory departments of educational institutions of higher professional education for the final exams	Paragraph 3 of Part 2 of Article 173 of the Labor Code of the Russian Federation
Employees for passing intermediate certification	Paragraph 4 of Part 2 of Article 173 of the Labor Code of the Russian Federation
Up to 1 month	Employees to pass the final state exams
Up to 4 months
Leave granted when combining work with studies in educational institutions of secondary vocational education
Up to 10 calendar days	Employees admitted to entrance examinations to educational institutions of secondary vocational education	Paragraph 2 of Part 2 of Article 174 of the Labor Code of the Russian Federation
Employees studying in educational institutions of secondary vocational education in full-time education for passing intermediate certification	Paragraph 3 of Part 2 of Article 174 of the Labor Code of the Russian Federation
Up to 1 month	Employees for final exams
Up to 2 months	Employees for the preparation and defense of the final qualifying work and passing the final state exams
Additional leave without pay, if it is provided for by the collective agreement
Up to 14 calendar days	Employees with two or more children under the age of 14	Part 1 of Article 263 of the Labor Code of the Russian Federation
Employees with a disabled child under the age of 18
The worker is a single mother raising a child under the age of 14
Father-employee raising a child under the age of 14 without a mother
Vacation granted under federal law
Up to 10 calendar days	Volunteer firefighters of territorial divisions of voluntary fire protection	Clause 7 of Article 18 of Federal Law No. 100-FZ of May 6, 2011
Up to 35 calendar days	Persons awarded the badge "Inhabitant of besieged Leningrad"	Article 18 Clause 1 Subsection 9 of the Veterans Act
Combat veterans	Subsection 11 of Section 1 of Article 16 of the Veterans Act
Up to 3 weeks	Heroes of Socialist Labor and full holders of the Order of Labor Glory	Part 2 of Article 6 of the Federal Law of 09.01.97 N 5-FZ
Heroes of the USSR, Heroes of the Russian Federation and full cavaliers of the Order of Glory	Part 3 of Article 8 of the Law of the Russian Federation of 15.01.93 N 4301-I
Up to 60 calendar days	War invalids	Subsection 17 of Section 1 of Section 14 of the Veterans Act
Long holidays
Up to 1 year	municipal employees	Part 6 of Article 21 of the Federal Law of March 2, 2007 N 25-FZ
civil servants	Clause 15 of Article 46 of the Federal Law of July 27, 2004 N 79-FZ
Holidays for the period of election campaigns
From the date of registration of a candidate by the CEC of the Russian Federation (list of candidates) until the day of the official publication of the results of the election of the President of the Russian Federation (deputies of the State Duma)	Members of the election commission with the right of an advisory vote	Clause 3 of Article 16 of Federal Law No. 19-FZ of January 10, 2003 and Clause 4 of Article 22 of Federal Law No. 51-FZ of May 18, 2005
For the term of office	Proxies of candidates, electoral associations	Clause 3 of Article 43 of Federal Law No. 67-FZ of June 12, 2002"

Ten questions about vacation at your own expense

Now consider the 10 most interesting situations related to the provision of unpaid leave to employees.

Question N 1. Is it possible to provide forced leave?

Can an employer, on its own initiative, send an employee on leave without pay?

Labor legislation does not provide for forced leave at one's own expense at the initiative of the employer.

If the employee, through no fault of his own, cannot perform the duties stipulated by the employment contract, the employer is obliged to pay him this time as downtime .

Note. The replacement of downtime through no fault of the employee with forced leave at the request of the employer should be considered illegal.

According to part 1 of article 157 of the Labor Code of the Russian Federation, downtime is paid in the amount of at least 2/3 of the average salary of an employee.

An employer who, on his own initiative, sent an employee on leave without pay, violates labor and labor protection legislation and may be held administratively liable. For this violation, an official may be fined from 1,000 to 5,000 rubles, and an organization from 30,000 to 50,000 rubles. (part 1 of article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Instead of a fine, an administrative penalty may be imposed on the organization in the form of suspension of activities for up to 90 days.

Note. Repeated violation by an official of labor legislation entails his disqualification for a period of one to three years (part 2 of article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Question No. 2. Is it possible to provide leave at your own expense on two grounds?

How many days of leave without pay can an employee take if he is entitled to such leave at once for two reasons, for example, as:

— working pensioner (14 calendar days);

— combat veteran (35 calendar days)?

Leave without pay is not cumulative. The employee can only count on the longest vacation possible. In our case, up to 35 calendar days (as a combat veteran) (part 2 of article 128 of the Labor Code of the Russian Federation) (see table on p. 108).

By analogy with additional unpaid leave for people caring for children (Article 263 of the Labor Code of the Russian Federation), the specified leave, upon a written application of the employee, can be attached to the annual paid leave or used separately in whole or in parts. The transfer of this leave to the next working year is not allowed.

Question N 3. Can I refuse to grant leave at my own expense?

Can an employer refuse to grant an unpaid leave to an employee?

If an employee belongs to a privileged category of employees who, in accordance with the provisions of Articles 128, 173, 174 of the Labor Code of the Russian Federation and federal laws, the employer is obliged to provide leave without pay, the employer has no right to refuse him such leave.

But he has the right to refuse to provide the employee with leave at his own expense for family reasons and other valid reasons, if this may adversely affect the activities of the organization.

Moreover, the employer may regard the unauthorized departure of an employee on leave without pay as absenteeism. In this connection, the employment contract can be terminated on the basis of subparagraph "a" of paragraph 6 of part 1 of Article 81 of the Labor Code of the Russian Federation (Appeal ruling of the Moscow City Court dated January 30, 2013 in case No. 11-2971).

Question No. 4. Is dismissal allowed during the vacation period at your own expense?

Can an employer fire an employee during unpaid leave?

Such dismissal is possible only in certain cases:

- if the initiative comes from the employee himself (Article 80 of the Labor Code of the Russian Federation);

- an agreement has been reached between the employee and the employer (Article 78 of the Labor Code of the Russian Federation);

- the organization is liquidated ( an individual entrepreneur ceases to operate) (part 6 of article 81 of the Labor Code of the Russian Federation).

Note. In other cases, the employer is not entitled, on its own initiative, to dismiss an employee who is on vacation, including on leave without pay.

Question N 5. Is it allowed to leave the vacation at your own expense ahead of schedule?

Can an employee take early leave at their own expense?

The Labor Code does not regulate the procedure for early exit of an employee from vacation without pay.

The initiator is an employee. If an employee is the initiator of early exit from vacation at his own expense, he must write an application addressed to the head of the organization.

Note. The issue of early retirement is decided by agreement between the employer and the employee.

In case of consent, the employer must issue an appropriate order. The wording of the order may be as follows: “Consider June 17, 2013 as the day the end of vacation without pay. E. E. Skauzov to start work on June 18, 2013. Reason: E. E. Skauzov’s statement dated June 11, 2013.” The employee must be familiarized with the order against signature.

If the employer does not agree, he puts his resolution on disagreement on the employee's statement.

The initiator is the employer. If the employer is the initiator, he must notify the employee of the recall from vacation at his own expense. On the notice, the employee will express his agreement or disagreement.

Upon receipt of the consent of the employee, the employer issues an order to recall the employee from vacation without pay. The wording of the order may be as follows: “In connection with the production need to recall researcher E.E. Skauzov from June 18, 2013 from vacation without pay.” The employee must be familiarized with the order against signature.

In both cases, in section VIII of the employee's personal card, clarifications are made on the actual duration of the vacation.

Question N 6. Is the vacation extended for non-working holidays?

Is it necessary to extend unpaid leave for the period of non-working holidays?

According to part 1 of article 120 of the Labor Code of the Russian Federation, non-working holidays are not included in the number of calendar days of the annual main or annual additional paid leave.

But the effect of Article 120 of the Labor Code of the Russian Federation does not apply to holidays without pay. Therefore, if non-working holidays fall on unpaid leave, then they are included in the number of calendar days of such leave, without extending it.

Example 1. An employee wrote an application for leave without pay from June 1 to June 19, 2013 (19 calendar days). This period includes a holiday non-working day on June 12. On what day the employee should go to work - June 20 or 21?

Solution. A non-working holiday on June 12, which fell on the period of leave without pay, is included in the period of such leave, without extending it. The employee must return to work on June 20.

Question No. 7. Is a leave granted at one's own expense for several hours?

Labor law does not establish a minimum or maximum duration of unpaid leave. Part 1 of Article 128 of the Labor Code of the Russian Federation states that the duration of such leave is determined by agreement between the employee and the employer. At the same time, all types of leave according to the Labor Code are granted in calendar or working days, in particular:

- annual basic paid leave - 28 calendar days (part 1 of article 115 of the Labor Code of the Russian Federation);

- annual additional paid leave for employees with irregular working hours - at least three calendar days (part 1 of article 119 of the Labor Code of the Russian Federation);

- Paid leave for employees engaged in seasonal work - two working days for each month of work (Article 295 of the Labor Code of the Russian Federation).

It is more expedient to provide the employee with leave at his own expense in days, and not in hours.

In the Internal Labor Regulations, the employer may fix the following provision: “For family reasons and other valid reasons, the Employee may be granted leave without pay for the number of working days agreed with the Employer, if this does not lead to violation of the deadlines and disruption of current work, to which The employee is directly related. The Employee must promptly notify the head of the structural unit of the provision of such leave in compliance with the order of subordination. Leave without pay is granted on the basis of a written application of the Employee and is issued by order (instruction) of the General Director . By agreement with the head of the structural unit, the employee can make up for unworked working time during the accounting period.

That is, one day the employer will put down the employee in the report card, for example, 6 working hours, and on the other day, when he makes up for these unworked hours, 10 hours.

All changes in the working time schedule must be agreed in writing to avoid conflicts.

In the application for leave without pay, the employee can indicate the day when he is ready to stay at work.

Question N 8. How to reflect the period of "vacation at your own expense" in the report card?

How to reflect the period of vacation without pay in the time sheet?

In the time sheet, the vacation period is indicated depending on the type of such vacation. So, the period of leave without pay:

- provided to the employee for family reasons and other valid reasons with the consent of the employer, is indicated in the report card with the letter code DO or digital 16;

- the provision of which is the responsibility of the employer, is marked in the report card with the letter code OZ or digital 17;

- provided in accordance with a collective agreement or industry agreement, in the report card is marked with the letter code DB or digital 18.

The duration of unpaid leave is important not only for recording the attendance at work in the report card. The length of service calculated for the purpose of granting annual paid holidays depends on it.

Question N 9. How does a vacation at one's own expense affect the vacation period?

How does the duration of unpaid leave affect the length of service for annual paid leave?

Vacations at their own expense, provided at the request of the employee, are included in the length of service, giving the right to the annual basic paid leave, but only to the extent not exceeding 14 calendar days during the working year (paragraph 6, part 1, article 121 of the Labor Code of the Russian Federation) .

If an employee used a vacation at his own expense lasting more than 14 calendar days, his working year is shifted by the number of days in excess.

Example 2. E. E. Skauzov has been working at Liverpool OJSC as a researcher since March 12, 2012. Every year, as a combat veteran, he takes an unpaid leave of 35 calendar days. In 2012, he took the specified vacation from October 1 to November 4. How will this affect the calculation of the length of service that gives the right to annual paid leave?

Solution. In the first working year of an employee (from March 12, 2012 to March 11, 2013), out of 35 calendar days of unpaid leave, only 14 calendar days will be included in the work experience for vacation (paragraph 5, part 1, article 121 of the Labor Code of the Russian Federation).

The start of the employee's second working year will be shifted by 21 calendar days (35 calendar days - 14 calendar days). Therefore, his second working year will be from April 2, 2013 to April 1, 2014.

Note that the days of unpaid leave are excluded from the calculation period when calculating the average earnings, regardless of its duration (subparagraph “e”, paragraph 5 of the Regulation on average earnings, approved by Decree of the Government of the Russian Federation of December 24, 2007 N 922).

In addition, the period of stay on such a vacation is not included in the length of service taken into account when assigning a pension (part 1 of article 10 of the Federal Law of December 17, 2001 N 173-FZ).

Question No. 10. Can an employee take a vacation at his own expense with subsequent dismissal?

The Labor Code does not provide for the provision of unpaid leave with subsequent dismissal. There is such a norm only for unused paid holidays - basic and additional (part 2 of article 127 of the Labor Code of the Russian Federation).

In practice, employers often apply this rule to holidays at their own expense by analogy (determinations of the Moscow City Court of February 15, 2013 N 4g / 7-788 / 13 and of December 6, 2011 in case N 33-40058).

According to Rostrud, the employer can grant the employee leave with subsequent dismissal, but this is his right, not his obligation (letter dated December 24, 2007 N 5277-6-1).

Note. Leave followed by dismissal

When granting leave with subsequent dismissal, the day of dismissal is considered the last day of vacation (part 3 of article 127 of the Labor Code of the Russian Federation). It is the last day of vacation that the record of dismissal in the work book of the employee should be dated. Moreover, the last day of work will be the last day the employee goes to work. That is, in fact, labor relations with an employee are terminated with the start of his vacation (Determination of the Constitutional Court of the Russian Federation of January 25, 2007 N 131-O-O and letter of Rostrud of December 24, 2007 N 5277-6-1).

As you can see, in this case, the concepts of “day of dismissal” and “last day of work” do not coincide. This means that it is necessary to give the work book and make a full settlement with the employee before he goes on vacation - on the last day of work (part 5 of article 80, articles 84.1 and 127 of the Russian Federation).

When granting leave with subsequent dismissal, the employee has the right to withdraw his application for dismissal before the start of the vacation, if another employee is not invited to his place in the transfer procedure (part 4 of article 127 of the Labor Code of the Russian Federation).

An alternative to dismissal at the end of unpaid leave may be the dismissal of an employee at his own request . Only in this case, he must notify the employer about this in writing no later than two weeks in advance (part 1 of article 80 of the Labor Code of the Russian Federation).

The employment contract may also be terminated before the expiration of the specified period, if the employer does not object to the dismissal of the employee (part 2 of article 80 of the Labor Code of the Russian Federation).

Note. The specified period begins the next day after the employer receives the employee's application for dismissal (part 1 of article 80 of the Labor Code of the Russian Federation).

On the day the employment contract is terminated, the employer is obliged to issue a work book to the employee and make settlements with him in accordance with Article 140 of the Labor Code of the Russian Federation (part 4 of Article 84.1 of the Labor Code of the Russian Federation). Since the employee does not work on the day of dismissal, the employer is obliged to send him a notification about the need to appear for a work book or agree to send it by mail (part 6 of article 84.1 of the Labor Code of the Russian Federation).

The employer is obliged to make settlements with the employee no later than the next day after the employee's demand for settlement is presented (part 1 of article 140 of the Labor Code of the Russian Federation).

In the Labor Code, only one article is devoted to unpaid leave - 128. Therefore, there are a lot of issues with the provision and registration of such leave. In our article we will try to answer the most burning ones.

Question 1

An employee wrote an application for leave without providing wages due to the transfer of her son to the army. However, an unfavorable situation has developed in the organization, which does not allow this employee to be released now. Does an employer have the right to refuse leave?

The Labor Code states that an employee may be granted leave without pay for good reasons. The Code does not define the concept of "good reasons". This means that the employer has the right to assess for himself whether the reason indicated by the employee in the application for leave is valid.

The employer can fix in local regulations (for example, in the Regulations on the internal labor regulations or in the collective agreement) a list of good reasons for which an employee can apply for leave without pay. At the same time, it is necessary to make a digression that if the absence of an employee can lead to adverse consequences for the organization, then leave without pay for the indicated reasons is not provided.

Reference

After analyzing the labor legislation, we can single out several reasons called valid in certain legal acts:

• family circumstances;
• serious health condition of a close relative (father, mother, wife, husband, son, daughter, sibling) or guardian;
• seeing off to the army;
• a fire or other disaster affecting the family or close relative of an employee;
• vacation of the child, quarantine in a children's institution, seeing off to a summer camp;
• passing exams for obtaining a second higher education.

Question 2

The organization decided to overhaul the office building and send all employees on unpaid leave for the duration of the renovation. How to arrange it correctly?

In this situation, it is better to ask, is it legal? Based on the same article 128 of the Labor Code of the Russian Federation, let's say that leave without pay is granted if two conditions are met simultaneously:

• at the written request of the employee. That is, with this statement, the employee expresses his will to go on vacation. The employer has no right to force you to write such a statement;
• for good reasons. The reason must be valid for the employee. Therefore, even if the employer forces you to write an application for leave without pay due to “office renovation”, the labor inspectorate will point out this “oversight”.

In confirmation of our words, we will quote the still valid Decree of the Ministry of Labor of Russia dated June 27, 1996 No. 6, which clearly states: "forced" leave without pay at the initiative of the employer is not provided for by labor legislation.

There are two ways out of this situation:

1. In accordance with Article 157 of the Labor Code of the Russian Federation, pay employees downtime due to the fault of the employer in the amount of at least two-thirds of their average earnings.

To record the fact of downtime, you should draw up a sheet of downtime in production. The form of the sheet is not approved by law, however, it should indicate the beginning and end of downtime, full name. employees and the reason for the downtime (Example 1 shows how you can create a blank sheet for downtime). Then, on the basis of this document, you should fill out the time sheet.

Example 1

2. You can try to come to an agreement with the workers. However, in this case, the employer will have to make some concessions. Let's explain. According to Article 121 of the Labor Code of the Russian Federation, the length of service giving the right to the annual basic paid leave does not include the time of unpaid leave with a total duration of more than 14 calendar days during the working year. However, the employer will not violate the law if he provides the employee with leave earlier than the period required by law.

One more moment. If the employees nevertheless agree and go on vacation without pay, then the procedure for registering such a vacation must be followed unconditionally. The employee will have to write an application for leave without pay. At the same time, it is better to indicate a really valid reason for going on vacation (see Question 1). Based on the applications, orders must be issued for each employee, in which the employees will put their signatures.

Question 3

How to properly arrange for an employee to go on vacation without saving earnings?

Article 128 of the Labor Code of the Russian Federation states that such leave is granted to the employee upon application. In it, the employee must indicate the duration of the vacation and the good reason why he asks for it (see Example 2).

Example 2

On the basis of the application, an order is issued in a unified form No. T-6 (see Example 3 for an example of an order).

Example 3

Further, information about the vacation granted is entered into the employee’s personal card (on the 4th page of form No. T-2) and into the time sheet, where the vacation time is marked with the code “DO”, if the vacation is granted by the consent of the employer, or the code “03” if the employee goes on vacation in accordance with the law. These marks are provided for by the Index of symbols of hours worked and unworked, given in the unified form No. T-12, approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1.

Question 4

In what cases is the employer obliged to provide leave without pay, in addition to those listed in Article 128 of the Labor Code of the Russian Federation?

To begin with, let us recall to which persons the employer is obliged to provide leave without pay in accordance with article 128 of the Labor Code of the Russian Federation :

• participants of the Great Patriotic War - up to 35 calendar days a year;
• working old-age pensioners (by age) - up to 14 calendar days a year;
• parents and wives (husbands) of military personnel who died or died as a result of injury, concussion or injury received in the performance of military service duties, or as a result of a disease associated with military service - up to 14 calendar days a year;
• working disabled people - up to 60 calendar days a year;
• employees in cases of the birth of a child, marriage registration, death of close relatives - up to five calendar days.

The so-called "other" cases, in which the employer is obliged to provide the employee with leave "without pay", are prescribed either in other articles of the Labor Code, or in Federal laws, or in a collective agreement.

First, consider cases from the Labor Code. It says that leave without pay is required:

• employees admitted to entrance exams to universities - 15 calendar days (Article 173 of the Labor Code of the Russian Federation);
• employees - students of preparatory departments of universities for passing final exams - 15 calendar days (Article 173 of the Labor Code of the Russian Federation);
• employees studying at state-accredited higher educational institutions full-time for passing intermediate certification (15 calendar days per academic year), for preparing and defending a diploma and passing final state exams (4 months), for passing final state exams (1 month). This is also stated in article 173 of the Labor Code of the Russian Federation;
• employees admitted to entrance examinations to educational institutions of secondary vocational education accredited by the state - 10 calendar days (Article 174);
• employees studying in accredited educational institutions of secondary vocational education in full-time education, combining study with work, for passing intermediate certification (10 calendar days per academic year), for preparing and defending a thesis and passing final state exams (2 months) , for passing the final exams (1 month). About this - article 174 of the Labor Code of the Russian Federation;
• part-time workers, if the duration of their annual paid leave at their main place of work is longer than at part-time work. The duration of the vacation in this case depends on the duration of the vacation at the main place of work (Article 286 of the Labor Code of the Russian Federation).

Under federal law, unpaid leave is granted to the following categories of workers (see Table 1).

Table 1. Employees who, in accordance with federal laws, are provided with mandatory leave without pay

		Base
Heroes of Socialist Labor and full cavaliers of the Order of Labor Glory	Up to three weeks	Federal Law No. 5-FZ of 09.01.1997 “On the provision of social guarantees to the Heroes of Socialist Labor and full holders of the Order of Labor Glory”
Members of the election commission with the right of an advisory vote, an authorized representative of the candidate	From the date of registration by the Central Election Commission of the Russian Federation of the list of candidates for the presidency or deputies of the State Duma until the day of the official publication of the election results	Federal Laws No. 19-FZ of 10.01.2003 “On Elections of the President of the Russian Federation” and No. 51-FZ of 18.05.2005 “On Elections of Deputies of the State Duma of the Federal Assembly of the Russian Federation”
War invalids	Up to 60 calendar days per year
Certain combatants and other persons specified in the law	Up to 35 calendar days per year	Federal Law of January 12, 1995 No. 5-FZ “On Veterans”
Citizen doing alternative civilian service	The duration of unpaid leave (provided in accordance with the Labor Code of the Russian Federation) is increased by the number of days required to travel to and from the place of vacation	Federal Law No. 113-FZ of July 25, 2002 “On Alternative Service”
military spouses	For a period exceeding the duration of the annual leave of the spouse-soldier	Federal Law of May 27, 1998 No. 76-FZ “On the Status of Military Personnel”
Individual participants in the electoral process	During the elections	Federal Law No. 138-FZ of November 26, 1996 “On Ensuring the Constitutional Rights of Citizens of the Russian Federation to Elect and Be Elected to Local Self-Government Bodies”
Confidants of candidates	For the period of his powers	Federal Law No. 67-FZ of June 12, 2002 “On Basic Guarantees of Electoral Rights and the Right to Participate in a Referendum of Citizens of the Russian Federation”

The collective agreement may stipulate that an employee who has two or more children under the age of fourteen may be granted additional annual leave without pay at a convenient time for them up to 14 calendar days. The same guarantees may be provided for employees with a disabled child under the age of eighteen, a single mother raising a child under the age of fourteen, a father raising a child under the age of fourteen without a mother. This is stated in article 263 of the Labor Code of the Russian Federation.

Question 5

The employee has not been to work for a week. His application came in the mail for three weeks of unpaid leave for family reasons. What should an HR officer do in this situation?

As already noted, leave without pay is granted to the employee only with the consent of the employer (of course, if the employee does not fall into the category of persons who have the unconditional right to leave without pay).

Therefore, if the employer, having received an application by mail, does not agree to grant leave to the employee, then the personnel officer must draw up an act on the absence of the employee at the workplace during working hours. Next, you should wait for the employee to leave the “vacation” and ask him for an explanation in writing. If he refuses, draw up an act about this.

After compiling all the necessary documents , the employer has the right to either bring the employee to disciplinary responsibility in the form of a remark or reprimand, or dismiss him for absenteeism (subparagraph “a”, paragraph 6, article 81 of the Labor Code of the Russian Federation).

Question 6

The employee went on leave without pay for 6 months. At this time, the organization took a new employee, concluding a fixed-term employment contract with him. After one month, the employee who went on vacation said that he planned to return to work in the near future. Does he have the right to do so? How do I get this early exit? What to do with an employee hired under a fixed-term employment contract?

The labor legislation does not clearly regulate the issue of early exit of an employee from leave without pay (as, for example, early exit from leave to care for a child aged 1.5 to 3 years). So we will figure it out on our own.

In this situation, two scenarios are possible. And everything will depend on the execution of a fixed-term employment contract.

Option 1. If a fixed-term employment contract was drawn up without specifying the exact end date, but with the wording “For the duration of the performance of the duties of the absent _____________ (full name and position), who retains the place of work, in accordance with the law”, then no there will be no problems. An employee leaving leave ahead of schedule writes a statement of his decision, appropriate changes are made to the order on granting leave without pay, and the employee again takes his workplace. At the same time, the “conscript” is dismissed, since the term of his contract has expired, that is, an event has occurred that caused the contract to expire.

Option 2. If the fixed-term employment contract indicates the exact date of its termination, in this case the consequences can be much more serious. The employer is not entitled to dismiss the “conscript” (after all, the contract has not expired, which means that he has no grounds for dismissal).

It is clear that if the employer is happy with the early return of the employee, then he would better agree with the “conscript”, pay him a decent monetary compensation and dismiss him by agreement of the parties or at the initiative of the employee. If the employer is not ready to incur financial costs (most likely, really considerable), then the question arises: can the employer not accept the “main” employee back before the expiration of his vacation?

The law does not contain a direct answer. Therefore, we turn to a lawyer for advice.

Opinion

Zhanna Perevalova, head of the legal department of MedBusinessConsulting LLC:

In my opinion, the employer has the right not to satisfy the application of this employee for the "early termination" of leave without pay for the following reasons.

According to Article 128 of the Labor Code of the Russian Federation, an employee, upon his written application for family reasons and other valid reasons, may be granted leave without pay, the duration of which is determined by agreement between the employee and the employer. In some cases, the employer is obliged to provide this leave. Leaving aside cases of compulsory leave without pay, at least two conditions are always necessary and sufficient:

• the employee's own will, expressed in a written statement,
• employer's consent.

Moreover, the period of this vacation is determined by agreement of the parties.

Therefore, in the absence of legislative regulation of the issue of "early termination" of unpaid leave, the parties to the employment contract must proceed from the same principles as when it was granted, namely, the two specified conditions will be sufficient:

• own will of the employee who expressed in writing the desire to shorten his vacation,
• the consent of the employer.

If the employer agrees, an appropriate order must be issued in free form (since there is no approved unified form for this case), but containing all the necessary details.

In case of disagreement of the employer, a resolution on this by an authorized person (as a rule, this is the sole executive body) is affixed to the application.

Is there a threat that the exclusion of the main employee from work will be considered an infringement of his rights to work? Most likely, these fears are in vain, since the parties to the employment contract are obliged to comply with the terms of the concluded contract, including the norms of labor legislation and other acts containing labor law norms. And even if the case goes to court, the above fixed-term contract can be considered in favor of the employer.

It must be emphasized: if you do not want to face such a problem, be careful about drawing up a fixed-term employment contract.

• HR and Labor Law