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Compensation for unused vacation. Compensation for unused vacation – when possible

Many people know about the possibility of replacing annual leave or some part of it with monetary compensation, but there are a lot of subtleties in this issue. Sometimes the employer has to deny the employee such compensation, and sometimes it is simply necessary to use it. In what cases is compensation for vacation possible, and what categories of employees cannot claim it? We will try to answer how such a replacement of part of the vacation is correctly completed and compensation upon dismissal is calculated and many other questions in this article.

The Labor Code, in Articles 126 and 127, considers two situations when such monetary compensation for vacation is possible.

  • Upon a written application from an employee, a portion of the annual leave lasting more than 28 days that extends beyond these time limits may be compensated.
  • Compensation is accrued for unused vacation days in the event of an employee's dismissal.

When is part of vacation time compensated during work?

Payment of compensation for unused vacation, as stated in Article 126, is possible for employees who have extended vacations. These include:

  • teachers, disabled people, minors and other categories of workers;
  • employees applying for;
  • persons who work irregular hours or work in harmful or dangerous conditions;
  • workers working in the regions of the Far North or areas legally equivalent to them;
  • athletes, coaches and medical professionals.

This provision gives the employer the right, but not the obligation, to replace vacation with compensation. Therefore, if the employer deems it necessary, he can provide the employee with appropriate leave and refuse compensation.

Application for vacation compensation

Compensation for unused vacation is possible only upon a written application from the employee, if such payment is permissible while working at a given place. When the employer does not receive such a statement, then even the court does not have the right to oblige him to compensate part of the vacation in cash.

And even if the employer agrees to replace some part of the vacation, it is impossible to compensate it to employees of certain categories. According to Article 126, the norm for replacing basic and additional leave with compensation in cash cannot be applied in relation to:

  • pregnant workers;
  • employees who have not yet turned 18 years of age.

When compensation for unused vacation is not due

When considering the issue of compensation, it is important to remember that this option is not permissible in relation to additional leaves received by employees in accordance with the Law of the Russian Federation No. 1244-1, which addresses issues of social protection of citizens who were exposed to radioactive effects as a result of the Chernobyl disaster.

It is also impossible to compensate for additional leave for those persons who work in dangerous or harmful conditions. But here it is worth considering that according to Article 117 of the Labor Code, the minimum duration of such leave can be 7 calendar days. If a person is entitled to a longer vacation, then, according to the text of the same article, the part of this vacation exceeding 7 days can be replaced by compensation. The reasons for this may be:

  • industry or cross-industry agreements;
  • collective agreements;
  • written consent of the employee, drawn up in the form of a special agreement to the existing employment contract.

The procedure for accrual and calculation, as well as the conditions under which this is possible, are determined by the above documents.

How to calculate days for unused vacation

It often happens that the employee was unable to use the vacation due to him during the past periods. Therefore, in the current year he decides to take all the accumulated days. When formalizing his desire, the employee writes an application to replace the part of the vacation exceeding 28 days with some monetary payment. But is compensation for unused vacation legal here? And if it is legal, then for how many unused days can the payment be accrued?

Article 126 will help resolve the problematic situation. When paid vacations are summed up for the purpose of transferring them to the employee’s next working year, only a part of each of such vacations, more than 28 days, can be compensated. It follows from this that if an employee is entitled to 28 days of vacation, even if he sums up the days unused in the previous period, he will not be able to receive compensation.

What is the procedure when there is an extended vacation? Is it possible to compensate an employee for vacation days in this case? Here the situation is ambiguous. Courts are inclined to see the same guarantee in extended leave for certain categories as in 28 days for the majority of workers. This is what court decisions are based on, stating that it is impossible to replace basic leave with a cash equivalent. But the same article 126 describes the replacement of part of the due leave that turns out to be more than 28 days.

Here it is worth considering the difference between the epithets “main” and “annual” as applied to paid leave. Annual leave includes both basic and other types of leave. Therefore, based on the terminology, in the case of a 42-day vacation, the employer will not be able to replace fourteen days of vacation with compensation. However, clear explanations from officials on this situation have not been published. What made practical solutions possible when employers meet the requests of employees and pay monetary compensation for one or another part of a long vacation of more than 28 days.

How to calculate compensation for unused vacation

According to the standards described in Article 139 of the Labor Code and set out in Regulation No. 922 on the specifics of calculating the average wage, the average daily wage is calculated based on the data of the last 12 months. The entire amount of wages for a given period is divided by 12, and then by 29.3. This value is the average number of days in a month.

Example

Let’s assume that an employee has been working at the company since August 13, 2012. Being a disabled person of group III, he has the right not to the usual 28, but to 30 calendar days of the main leave prescribed in this case. While working for the company, the employee was unable to use all vacation days. In the first year he had 21 vacation days, and in the second - 22. How many unused days can he be replaced by vacation compensation?

To summarize, in 2 years, instead of the due 60 days of vacation, only 43 days were used. In this case, Article 126 comes into force, and the person has the right to count on compensation for the part of the vacation exceeding 28 days. In the case under consideration, the employer may consider an application for compensation of four days, two for the years worked. The employee must use the remaining thirteen days in the prescribed manner.

As for calculating the amount of compensation, it can be calculated, for example, for the period from 08/13/2012 to 08/12/2013. It should be noted that the employee worked throughout the billing period. Therefore, with a salary of 18,000 rubles, it is easy to calculate the average daily earnings of this employee, which, according to the formula already given, is 614.33 rubles. Therefore, compensation for unused vacation in this particular case for 2 days will be equal to 1,228.67 rubles.

Compensation for unused vacation upon dismissal

Upon dismissal, compensation is due for all vacations unused during work. This norm is enshrined in the text of Article 127 of the Labor Code. But before you find out the number of days that can be compensated and calculate compensation for unused vacation, you need to take into account that an employee can use previously unused vacation with the subsequent dismissal. Thus, the last day of vacation undoubtedly turns out to be the day of dismissal.

To do this, the employee needs to submit a corresponding application, and the employer must agree to the employee using the vacation. The rule is not applicable only in cases where the dismissal is caused by guilty acts, and the person can only receive compensation. However, the employer, even if the employee submits a corresponding written application, is not obliged to provide.

Dismissal and vacation of an employee working under a fixed-term contract

An interesting situation arises when an employee who is connected to the employer with a fixed-term employment contract is dismissed. Sometimes, when considering such an employee’s application for leave, which should be followed by dismissal, the employer refuses, fearing the transformation of a fixed-term contract into an open-ended one. This fear is motivated by the fact that if the vacation goes beyond the scope of the contract, it will be impossible to fire the employee. Such fears are wrong.

Article 127 determines that upon expiration of an employment contract and related dismissal, leave may be granted even in a situation where its duration partially or completely extends beyond the scope of the existing employment contract. Here, the day of dismissal coincides with the final day of vacation. The last working day in this situation will be the day before the vacation. On this day, the employee receives a work book, and it is important to make a final settlement with the employee and perform other actions related to dismissal.

Therefore, if the contract is terminated at the initiative of the employee and vacation is granted, then the employee has every right to withdraw his previously submitted resignation letter until the day his vacation begins. It is important to take into account that such a review is real provided that someone else has not yet been found to replace the employee.

Calculation of compensation for unused vacation upon dismissal

If the employee did not want to use the leave due to him before dismissal, or the employer is against providing such leave, then the employee will receive compensation for leave upon dismissal. The Labor Code does not describe any special procedure for calculating unused vacation days. Therefore, employers have to rely on those approved as early as April 30, 1930. Rules on vacations and clarifications of the Ministry of Labor on this issue.

According to these documents, employees who are dismissed by the employer and have worked for at least 11 months counted towards the work period are entitled to full compensation for unused vacation (standard, maximum 28 days). In other words, if an employee worked for a whole year and another eleven months, but the vacation was not used, then the person is entitled to vacation compensation upon dismissal equal to 56 calendar days, or 28 days of annual activity in the company. Full compensation due for 28 days of leave is also due to those employees who have worked from 5.5 to 11 months. This happens provided:

  • liquidation of the entire enterprise or its individual divisions;
  • reduction of the organization's staff or the volume of work performed;
  • temporary suspension of work or comprehensive reorganization;
  • the employee's entry into military service.

This means that an employee who has worked for a company for a year and a half and has not used vacation, upon liquidation of the company and dismissal under Article 81 of the Labor Code, can count on compensation for unused 56 calendar vacation days. This calculation of leave compensation upon dismissal is also confirmed by the courts.

It is important to remember that when calculating compensation upon dismissal, it is not the calendar year that is considered, but the working year starting from the moment the employee is hired.

In addition to the cases discussed above, other employees who have worked for up to 11 months are entitled to proportional compensation for vacation, regardless of the reason for dismissal.

Example

The employee was hired by the company on September 12, 2013. Of the 28 days of annual leave he was entitled to in 2014, he used only fifteen. And on January 11, 2015, the employee must be dismissed of his own free will.

For the year of work from 09/12/2013 to 09/11/2014, the employee was entitled to 28 vacation days. But due to circumstances, they did not use 13 days. From September 2014 to January 2015, the employee has the right to receive another 9.32 days. This means that upon dismissal, the employee should receive compensation for 22.32 unused vacation days.

If the decision to dismiss was made earlier, this would affect the amount of compensation. Following the text of paragraph 35 of the rules used when calculating compensation, the surplus:

  • less than 0.5 months are not taken into account;
  • more than half are rounded in favor of the employee.

If an employee is entitled to extended annual leave, then compensation for unused leave is calculated based on the amount of established leave, which is divided by 12 and then multiplied by the number of months worked by the person.

Experience for granting leave

As stated in Article 121 of the Labor Code, the right to basic leave is given by length of service, which includes the actual working time of a specific employee:

  • when an employee retained his job, but did not actually work, the reason for this may be the paid leave itself, non-working holidays and days off, as well as other days of rest provided;
  • absenteeism that the employee was forced to commit as a result of illegal removal from work or dismissal, accompanied by further reinstatement to his position;
  • removal from duties of a person who, through no fault of his own, was unable to undergo the company's mandatory medical examination;
  • leave during which wages are not maintained, a total of no more than 14 days for the year and provided at the request of the employee.

How to calculate days of unused vacation, taking into account the features of calculating length of service

The employee began his duties on September 26, 2013. In May 2014, he received unpaid leave, which lasted 19 days. In October of the same year, the employee decided to leave the organization, and the date of his dismissal was 10/12. What compensation for vacation days is due in such a case? For this person, the working year begins on September 26, 2013 and ends on September 25, 2014. But due to the unpaid leave that took place and the provision that only 14 days of such leave can be included in the length of service, the end of the working year must be shifted by 7 days. That is, after the adjustment, the year will have a slightly different frame, starting from 09/26/2013 to 09/30/2014.

From October 1 to October 12, the employee performed his duties, but these days are not taken into account in the calculation of compensation, since the period does not exceed half a month. Based on the calculations carried out, it is possible to accrue compensation to the employee for all 28 unused vacation days.

How to calculate compensation for unused vacation for part-time workers

If we talk about calculating compensation for part-time workers, then according to Article 287 of the Labor Code, all compensation and guarantees declared by legislation or other acts or agreements must be provided to part-time workers in full. Therefore, here the payment of compensation for leave upon dismissal is no less relevant, as when calculating employees at their main place of business. At the same time, such part-time work internal or external does not matter.

Let's summarize:

So, as you can see, replacing vacation with compensation is possible not only in case of non-use of the main vacation, but also additional one. And if such compensation is not possible during work, for example, as is the case with additional leave in case of harmful working conditions, then when dismissing an employee, the employer must perform this calculation and make compensation. Vacation compensation is paid on the employee’s last working day. But for the payment of such compensation for part of the vacation, more than 28 days, the deadlines are not established by law. And here it would be useful to consolidate them in a local act that establishes the rules of remuneration at the enterprise.

See also:

Part of the annual paid leave exceeding 28 calendar days, upon written application of the employee, can be replaced by monetary compensation. An employee can contact the employer with such a statement at any time. The need to pay compensation for unused vacation may also arise when an employee is dismissed. The specifics of paying compensation in both cases are explained by Boris Chizhov, deputy head of the department of the Administration of Rostrud.

So, compensation for unused vacation can be paid in two cases: during the period of work and upon dismissal. Let's consider both situations.

Payment of compensation during the period of work

When applied in practice, Art. 126 of the Labor Code of the Russian Federation, attention should be paid to two circumstances.

First. The initiative to replace with monetary compensation that part of the vacation that exceeds 28 calendar days belongs exclusively to the employee. Without a written application from the employee, the employer does not have the right to unilaterally consider this issue.

Second. The employer, in turn, considering such a statement from the employee, may agree with it and pay monetary compensation, or perhaps, due to production conditions or for other reasons, disagree with the employee’s request and provide him with the entire vacation.

At the same time, it is not allowed to replace with monetary compensation annual basic paid leave and annual additional paid leave for pregnant women and employees under the age of 18, as well as annual additional paid leave for employees engaged in work with harmful and (or) dangerous working conditions. in appropriate conditions (with the exception of payment of monetary compensation for unused vacation upon dismissal). Such replacement of vacation with money is not allowed, even if employees strongly request this from the employer.

The amount of compensation for unused vacation is determined by the same rules that apply when calculating average earnings during vacation.

In accordance with Art. 139 of the Labor Code of the Russian Federation, the average daily earnings for paying for vacations and paying compensation for unused vacations are calculated for the last 12 calendar months by dividing the amount of accrued wages by 12 and by 29.4 (the average monthly number of calendar days).

example 1

The local regulatory act (LNA) of the organization establishes that employees with long work experience receive additional paid leave. Based on this LNA, an employee with a salary of 18,500 rubles is granted additional leave for length of service - three calendar days. In August 2013, the employee is granted annual leave. The employee submitted a written application with a request to replace additional leave exceeding 28 calendar days with monetary compensation. The employer granted this request.

Since the employee has worked the entire pay period, the average daily earnings will be equal to:

(18,500 rub. x 12 months): (12 months x x 29.4 k. days) = 629.3 rub./k. days

The average salary saved during the vacation period will be:

629.3 rub./k. days x 28 k. days. = = 17620.4 rub.

Compensation for unused days of additional leave in this case will be equal to:

629.3 rub. x 3 k. days. = 1887.9 rub.

Compensation upon dismissal

The issue of paying compensation to an employee for unused vacation upon his dismissal is regulated by Art. 127 Labor Code of the Russian Federation.

Given that leave must be granted annually, employees exercise their right to leave by receiving leave in kind. And since, as a rule, it is impossible to provide a dismissed employee with leave in kind, compensation is paid.

According to Art. 114 of the Labor Code of the Russian Federation, annual paid leave is provided to all employees, therefore the provision of Art. 127 of the Labor Code of the Russian Federation applies to seasonal, temporary workers, as well as those who work part-time.

Upon dismissal, the employee is paid monetary compensation for all unused vacations. The employer is obliged to pay all amounts due to the employee, including compensation for unused vacation, to the employee on the day of his dismissal.

Vacation to be replaced by monetary compensation upon dismissal is calculated on the basis that full vacation is due to an employee who has worked a full year. If the working year is not fully worked, the vacation days for which compensation must be paid are calculated in proportion to the months worked. In this case, surpluses amounting to less than half a month are excluded from the calculation, and surpluses amounting to at least half a month are rounded up to a full month (see “Rules on regular and additional holidays”, approved by the USSR People's Commissariat of Labor on April 30, 2030 with subsequent amendments and additions) .

If an employee is dismissed before the end of the working year for which he has already received annual paid leave, the employer may make deductions from his salary for unworked vacation days to pay off his debt to the employer.

Upon written request from the employee, unused vacations may be granted to him with subsequent dismissal (except for cases of dismissal for guilty actions).

Upon dismissal due to the expiration of the employment contract, leave with subsequent dismissal may be granted even when the vacation time completely or partially extends beyond the term of this contract. In this case, the day of dismissal is also considered the last day of vacation.

When granting leave with subsequent dismissal upon termination of the employment contract at the initiative of the employee, this employee has the right to withdraw his resignation letter only before the day the leave begins and if another employee is not invited to take his place by way of transfer.

In all cases of granting leave followed by dismissal, the day of dismissal is considered the last day of leave. The employee can take another job, which will be the main one for the employee, and not a part-time job, only after the end of the vacation.

At the same time, the issuance of all amounts due to the employee from the employer, as well as the work book with a notice of dismissal included in it, is made before the employee goes on vacation (see Definition of the Constitutional Court of the Russian Federation dated January 25, 2007 No. 131-O-O).

In practice, it happens that when an employee is dismissed, the HR department “finds” the days of unused vacation in previous years. Sometimes accountants find it difficult to decide how to calculate compensation for vacations that took place several years ago, when both working conditions and pay were significantly different from today's rules. And then accountants say that the old vacation days have “burned out.” But this fundamentally contradicts part 1 of Art. 127 of the Labor Code of the Russian Federation, which clearly states that “upon dismissal, the employee is paid monetary compensation for all unused vacations.”

As for average daily earnings to determine the amount of compensation, there is no need for the accountant to pull up statements from previous years to determine the payments taken into account when calculating average earnings. To calculate, it is enough to sum up the payments for the last 12 calendar months before dismissal and divide them by 12 and 29.4.

example 2

When the employee was dismissed in July 2013, it turned out that in 2006 he had two calendar days of vacation left (salary - 5,000 rubles), in 2008 - four (salary - 5,800 rubles), in 2010 - three (salary - 9,000 rubles), and for the working year 2012-2013 - 28 calendar days (salary since 2011 - 12,000 rubles). It is necessary to determine the amount of compensation for unused vacations.

If the employee did not have other payments that should be taken into account when calculating average earnings, the average daily earnings will be equal to:

(12,000 rub. x 12 months): (12 months x x 29.4 k. days) = 408.16 rub./k. days

The amount of compensation for unused vacation will be determined as follows:

408.16 rub./k. days x (2 k. days + + 4 k. days + 3 k. days + 28 k. days) =

= 15101.92 rub.

As can be seen from the example given, we did not need information about wages for the time that was not included in the billing period.

An employee's annual paid leave can be replaced with monetary compensation only in two cases - if the dismissed employee has unused vacations left or if we are talking about replacing a part of the vacation exceeding 28 calendar days with a cash payment (). Let's look at both of these situations in more detail.

Compensation for unused vacation upon dismissal

Upon dismissal, the employee is paid monetary compensation for all unused vacations (). It is worth noting that even though the employee’s right to use vacation for the first year arises after six months of continuous work, an employee who has worked for the company for less than six months is still entitled to compensation for unused vacation (,).

The employer must pay the amount due to the employee on the day of dismissal, and if the employee did not work on that day, then no later than the next day after he presents the corresponding demand ().

Determine the number of vacation days the employee is entitled to, taking into account his length of service. At the same time, not only employees who have worked a full year, but also employees:

  • have worked for this employer for at least 11 months, which are subject to credit towards the period of work giving the right to leave;
  • having worked from 5.5 to 11 months, if they are dismissed due to the liquidation of an enterprise or institution or individual parts of it, reduction of staff or work, as well as reorganization or temporary suspension of work, etc. ().

In all other cases, employees are entitled to leave proportional to their length of service. For example, if an employee has an annual paid leave of 28 calendar days, for each month of service he is entitled to 2.33 calendar days of leave (28 days: 12 months).

Thus, the number of vacation days due to an employee can be determined using the following formula:

O = E: 12 x C, where
O – the number of vacation days due to the employee;
E – total duration of vacation;
C – number of months of vacation experience.

Subtract the days already used by the employee from the number of vacation days allotted to the employee. At the same time, often the number of vacation days for which compensation is due upon dismissal turns out to be fractional. Their rounding is not provided for by law, but the Ministry of Health and Social Development of Russia explained that the employer can round the resulting number, although not according to the rules of arithmetic, but exclusively in favor of the employee ().

If the employee has completed a full 12-month pay period:

NW = (W: 12: 29.3) x D, where:

29.3 – average monthly number of calendar days (constant indicator in accordance with);

If an employee has not fully worked for one or more months of the pay period:

SZ = (W: (29.3 x M + N)) x KD, where:
SZ – average earnings for vacation days;
W – wages actually accrued for the billing period;
M – the number of full calendar months (when the employee worked all working days or shifts);
N – number of calendar days in incomplete calendar months;
D – number of calendar days of vacation.

In this case, the H indicator for each month must be calculated separately:

N = 29.3: KD x KO, where:
N – number of calendar days in an incomplete calendar month;
KD – number of calendar days in a month;
KO - the number of calendar days worked this month.

The results obtained for the H indicator for each partial month should then be summed up and the resulting total substituted into the formula for calculating average earnings.

Let us remind you that the average daily earnings are calculated for the last 12 calendar months (,). In this case, time, as well as amounts accrued during this time, are excluded from the billing period if:

  • the employee retained his average earnings in accordance with the law (for example, annual basic paid leave), with the exception of breaks provided for by the Labor Code of the Russian Federation for feeding a child;
  • the employee received temporary disability benefits or maternity benefits;
  • the employee did not work due to downtime due to the fault of the employer or for reasons beyond the control of the employer and employee;
  • the employee did not participate in the strike, but due to this strike he was unable to perform his work;
  • the employee was provided with additional paid days off to care for disabled children and people with disabilities since childhood;
  • in other cases, the employee was released from work with full or partial retention of wages or without payment in accordance with the law (clause 5 of the Regulations on the specifics of the procedure for calculating average wages).

ATTENTION!

Persons who have entered into an employment contract for a period of up to two months () and seasonal workers () are entitled to vacation not in calendar days, but in working days (at the rate of two working days per month of work). In this regard, the average daily earnings of such employees should be calculated using the following formula:

SZ = (Z: P6) x D, where:
SZ – average earnings for vacation days;
W – actual accrued wages;
P6 – the number of working days according to the calendar of a 6-day working week that fall within the hours worked;
D – number of working days of vacation.

Multiply the calculated average daily earnings by the number of unused vacation days. This will be the amount of compensation due to the employee.

At the same time, the resigning employee has the right to prefer the vacation itself as compensation. In this case, he must submit a written application to the employer for the provision of unused vacation with subsequent dismissal - only employees who are fired for guilty actions cannot exercise this right (). In this case, the day of dismissal is considered the last day of vacation, and the last day of work is the day preceding the first day of vacation (). This is necessary so that the employer can properly fulfill its obligation to formalize the dismissal and pay the dismissed employee.

Compensation for part of annual paid leave

Part of the annual paid leave exceeding 28 calendar days can be replaced by monetary compensation (). This is possible when the employee is entitled to extended or additional leave (,).

In addition, when summing up annual paid leave or transferring leave to the next working year, compensation can be received for the part of each annual paid leave exceeding 28 calendar days, or any number of days from this part. If an employee who is entitled to an annual basic paid 28-day vacation did not use it last year, he will still not be able to receive compensation this year, regardless of how many days of vacation he has accumulated. This is due to the fact that, as stated above, the right to replace part of the vacation with a cash payment can only be used by those employees who are granted extended or additional vacation.

To learn how to correctly determine the period in which the last 12 calendar months of work of an employee applying for monetary compensation instead of vacation falls, read the material "Determination of the billing period when calculating compensation for unused vacation" V "Encyclopedia of solutions. Labor relations, personnel"

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However, there are a number of nuances that are important to keep in mind.

First, to receive compensation, the employee must submit a written application. The employer does not have the right to replace part of the employee’s vacation with compensation on his own initiative.

Secondly, the employee who submitted the corresponding application should not belong to any of the following categories:

  • pregnant women;
  • workers under 18 years of age;
  • workers engaged in work with harmful and (or) dangerous working conditions (if the question concerns).

These employees are prohibited from paying compensation even at their request. But there is an exception here too. It applies to workers engaged in work with harmful and (or) dangerous working conditions. Part of their annual additional paid leave, which exceeds seven calendar days, on the basis of an industry (inter-industry) agreement, collective agreements, as well as the written consent of the employee, drawn up in the form of an additional agreement to the employment contract, can be replaced by separately established monetary compensation ().

At the same time, even if all the above conditions are met, providing compensation for part of the vacation is the right, but not the obligation of the employer. Therefore, he has the right to refuse the employee’s request.

If management nevertheless decides to satisfy the employee’s request, replacing the vacation with monetary compensation must be issued in the form of an order from the employer, issued in free form. The main thing is to reflect for which vacation in which particular working year compensation is provided. In this case, the average earnings for payment of compensation are calculated in exactly the same way as for compensation for unused vacation.

Related documents:

  • Decree of the Government of the Russian Federation of December 24, 2007 No. 922 " "
  • , approved CNKT of the USSR April 30, 1930 No. 169

Compensation for unused vacation without dismissal - 2018- a question that concerns accountants of any large and medium-sized company. After all, almost all organizations are very reluctant to replace unused vacation with cash compensation for employees. But are they obliged to do this? And what should an accountant pay attention to in this matter?

In what cases is compensation for vacation provided without dismissal?

According to the Labor Code, each employee who has worked for the company for 1 year is entitled to at least 28 days of paid leave annually. But in practice, few workers, especially in medium-sized and large companies, manage to take all 28 days off in a year. There can be many reasons: there was no desire, the manager did not let me go due to high workload, etc. For all possible reasons, the consequences are the same.

Art. 126 of the Labor Code of the Russian Federation allows the company, instead of vacation days that the employee does not want to use, to pay him monetary compensation.

IMPORTANT! In Art. 126 of the Labor Code of the Russian Federation enshrines the right of the company’s management, and not the obligation, so the final decision on the issue in any case will remain with the organization.

However, the company does not always have the right to accommodate an employee who wants to receive money in exchange for certain vacation days. The Labor Code of the Russian Federation establishes a special list of persons who must be provided with leave, and not compensation replacing it. Such persons include (Article 126 of the Labor Code of the Russian Federation):

  • pregnant women;
  • minors (under 18 years of age);
  • persons who work in conditions considered harmful or dangerous;
  • employees who were exposed to radiation as a result of the accident at the Chernobyl nuclear power plant (letter of the Ministry of Labor of the Russian Federation dated March 26, 2014 No. 13-7/B-234).

NOTE! For persons working in harmful or dangerous conditions, one exception is established: only the minimum additional leave, which is 7 days, cannot be replaced with a cash payment. This means that if, for example, an employee has the right by law to 10 days of additional leave, then only instead of 3 days of such leave can money be paid.

If the employee does not fall into any of the listed categories, the company may, at his request, replace the vacation with a cash payment.

But the following is important here: you can pay money only in lieu of those days that exceed the 28 days of vacation that an employee is entitled to per year. This rule applies to vacation for each year separately. The parts of vacation not taken for different years in the amount of no more than 28 days are not summed up for the purpose of calculating compensation.

A situation similar to the above is when an employee decides to quit without taking the full vacation allotted to him. Can he then count on compensation?

For more details, see the article .

Example

The employee did not take advantage of vacation during 2017; he had 28 days left. A similar situation repeated itself in 2018. Neither in 2017 nor in 2018 did the total number of vacation days for an employee exceed (calculated separately for each year) 28 days. Therefore, the employee cannot count on replacing the 2017 vacation with a cash payment.

The question arises: in what cases can one demand compensation for vacation left over from past years of work in the company? Only if the employee has the right to extended or additional leave (for example, disabled workers, etc.).

IMPORTANT! Even if the employing company is not obliged to provide increased leave to an employee due to the direct requirements of the Labor Code of the Russian Federation, it has the right to do this independently by securing such leave in the local regulatory legal acts (for example, upon reaching a certain number of years of work experience in the company, the employee’s leave increases by some amount of days).

How is compensation for vacation without dismissal calculated in 2018?

The Labor Code of the Russian Federation does not indicate what specific amount of compensation a company must pay to an employee for each day of non-vacation, but establishes a calculation method.

As in the case of payment for the remaining days of vacation upon dismissal in our situation, if the employee does not leave the company, compensation is also calculated based on data on the specialist’s earnings on average for 1 working day:

To urgent departure = To deputy day . × SRHR,

To urgent departure - amount of monetary compensation;

To the deputy . - the number of vacation days in lieu of which money will be paid;

SRWP is the average salary of an employee for 1 working day.

The greatest difficulties in practice are caused by the calculation of the employee’s average earnings per day for the purposes of this compensation. It is determined by the formula:

SRZP = salary accrual. / To school days,

Salary accrued - the total amount of payments (salary, bonuses, etc.) that the employer accrued to the employee for the period under review;

To school days - the number of days (calendar) that are taken into account when calculating the average salary of an employee for 1 working day.

At the same time, the number of days that are involved in calculating the average daily salary of an employee, for example, for 2018, is calculated differently for full and partial months of work:

  • if the months are fully worked, then to the academic day. is taken to be equal to the number of months of work multiplied by 29.3 (the average number of calendar days in a month);
  • if some months of 2018 were not fully worked, then they are taken in proportion (the ratio of the number of days in a month during which the employee actually performed his official duties to the total number of days in such a month). And then this proportion for each month not fully worked is multiplied, as in the case of a full month, by 29.3.

Tax consequences of paying compensation for leave without dismissal

Cash payments instead of unused vacation days are undoubtedly payments related to the existence of an employment relationship between the company and the specialist.

As a general rule, all payments from an employer to an employee are subject to personal income tax. The Tax Code of the Russian Federation contains special exceptions in this part: a list of payments not subject to personal income tax. The compensation in question is not mentioned among them. Consequently, personal income tax will have to be charged (paragraph 6, 7, paragraph 3, article 217 of the Tax Code of the Russian Federation).

In addition, the corresponding amount of insurance contributions should be added to the amount of compensation to working employees for unused vacation days (clause 2, clause 1, article 422 of the Tax Code of the Russian Federation, clause 2, clause 1, article 20.2 of Law No. 125-FZ).

But the situation with income tax is better: the amount of such compensation can be taken into account in expenses, since this is provided for in clause 8 of Art. 255 Tax Code of the Russian Federation. However, it must be taken into account that only a part of the annual paid leave exceeding 28 calendar days can be taken into account in expenses (letters of the Ministry of Finance of the Russian Federation dated January 24, 2014 No. 03-03-07/2516, dated November 1, 2013 No. 03-03-06/1 /46713).

Replacement of vacation with monetary compensation

Along with understanding the methodology for calculating the amount of monetary compensation in lieu of leave, as well as the tax consequences of its payment, the company must clearly understand what basic steps need to be taken in order to pay such compensation to an employee.

Often employees take the rest of their vacation and quit immediately after.

For more information on this, see Art. .

First, it is necessary for the employee to contact the employer with a corresponding application.

After the application is received, the company's management must decide whether to provide compensation or not.

If it was decided to replace unused vacation with a certain amount of money, then the organization should then generate a corresponding order in any form.

IMPORTANT! Such an order must necessarily indicate information about the employee, the number of vacation days that the employer intends to compensate in money, as well as a reference to the basis for payment of such compensation (the corresponding statement from the employee).

Next, you should not forget to reflect the fact of replacing unused vacation days with a cash payment in the employee’s personal card (Form No. T-2). In particular, in section VIII “Vacation” of such a card, it is necessary to indicate the basis (for example, additional leave) for providing compensation, and also refer to the completed order of the manager for this employee.

After which, the fact of replacing vacation with a cash payment must be recorded in the vacation schedule in order to prevent confusion in the future. In the schedule, as a note (column 10), you need to indicate how many days were compensated with money, and also provide details of the manager’s order

For more information on how to create such a vacation schedule, see the article .

How to correctly submit an application for compensation for unused vacation?

An employee who wishes to receive a certain amount of money in lieu of unused vacation may have questions, in particular, regarding the application for such compensation. How to compose it? Are there any statutory requirements for the application?

Neither the Labor Code of the Russian Federation nor Russian legislation on accounting impose special requirements for an employee’s application. It is only important that such a statement be written in the name of the head of the organization. The rest, including the form and content of the application, can be anything at the discretion of the employee.

You can find a completed sample application for vacation compensation on our website.

Compensation for layoffs in 2018

A special situation arises if a company downsizes and fires workers. In this case, dismissed employees are entitled to be paid redundancy compensation - in 2017, it includes severance pay, including compensation for vacation not taken.

NOTE! In case of dismissal due to staff reduction, vacation pay paid in advance cannot be withheld from the employee (Part 2 of Article 137, Subsection 2 of Part 1 of Article 81 of the Labor Code of the Russian Federation).

Results

Thus, in 2018, it is important for employees to remember that if they have more than 28 days of vacation left in 2017, then instead of these days they can ask the employer to pay monetary compensation. The employer needs to know that paying such compensation is his right, not his obligation. In addition, some groups of people (for example, pregnant women) cannot replace vacation with cash payments.

It is also important to understand that the payment of such compensation will be subject to personal income tax and insurance contributions, but the legislator allows it to be taken into account in income tax expenses. It is equally important for the employer to remember how to correctly calculate the amount of such compensation and document its payment (by order of the manager based on the employee’s application).

Each employee has the right to annual paid leave of 28 calendar days. This right arises after six months of working for one employer.
Vacation is provided according to a schedule that must be approved no later than December 15 of the current year for the next year. The right to use does not depend on the calendar year, but on the working year, that is, from the moment the employee is hired. This is stated in the letter of Rostrud dated December 18, 2012 No. 1519-6-1.

If he was hired on November 15, 2017, then the right to use full vacation arises six months later, that is, from May 15, 2018. In this case, the employee can “walk” for 28 calendar days, but he will receive “Vacation Pay” in proportion to the time worked.
He will have the right to full vacation and full “vacation pay” only after 11 months of work, that is, from October 14, 2018.

In addition to the main vacation, there is also an additional one. It is provided to certain categories of workers. For example:

  • workers of the Far North and territories that have a similar status;
  • workers working in hazardous working conditions;
  • workers with hazardous working conditions;
  • other categories of workers listed in Art. 116 Labor Code of the Russian Federation.

Both basic and additional leave are paid. The amount of vacation pay depends on the employee’s average earnings over the last year. According to Art. 139 of the Labor Code of the Russian Federation, to calculate the average salary, all labor payments to an employee for the last calendar year are taken into account.

An employee has the right to receive compensation for unused vacation only in two cases:

  • upon dismissal for all unused vacation days;
  • without dismissal for vacation days exceeding 28 calendar days. This is stated in Art. 127 Labor Code of the Russian Federation.

The amount of compensation for unused vacation depends on the number of days and the employee’s average earnings for the last year. The average salary of an employee for the year is calculated by dividing the actual salary for the year by 12 months and by a constant number of 29.3 - this is the average number of days in a month.

For example, an employee has 6 days of unused vacation in 2018. Over the last year, his total salary was 420,000 rubles.
The average daily salary of this employee is (420,000 / 12) / 29.3 = 1,194.5 rubles per day
For 6 days of unused vacation, he will receive 1,194.5 * 6 = 7,167.2 rubles.

Is it possible to receive compensation for vacation and continue to work? An employee can only receive compensation for unused additional vacation. To do this, he must write an application addressed to the employer or a person authorized by the employer to sign such applications.

The application is written in free form. If your company has developed an application form, you must use it. The application must contain the following information:

  • In the upper right corner you must indicate information about the employer and the applicant:
    • the position of the employer's representative who has the right to sign such statements, and his full name. For example: “To the General Director of Petarda LLC, K.P. Silyanov”;<\li>
    • position and full name of the applicant. For example: “From the programmer M.E. Uvarov”;
  • Next, in the center you need to write the word “Statement”;
  • Then the “body” of the statement. Here you need to indicate the main text, that is, a request to replace unused vacation days with monetary compensation. Also here you need to indicate the reason why the additional leave arose, its duration and period. You also need to indicate Art. 126 of the Labor Code of the Russian Federation, on the basis of which such a right arises for the employee;
  • Then the date of application and the signature of the employee himself.

Based on the application, the personnel officer issues an order and sends an order for payment of compensation to the accounting department. The employee must read the order and put his signature on it.

Payment of compensation is made within 10 days after acceptance of the application or on the day of payment of the next salary.

Replacing a vacation that does not exceed 28 calendar days with monetary compensation is prohibited by law. But some employers accommodate employees halfway and pay them such compensation for those vacations that employees “did not take off” in previous years.
Since this is prohibited by law, at the very first inspection by the labor inspectorate, the employer, as a legal entity, will be fined in accordance with Part 1 of Art. 5. 27 of the Code of Administrative Offenses of the Russian Federation in the amount of 30 thousand rubles, and for the general director, as an official, the fine will be from 1,000 to 5,000 rubles.

The decision to pay compensation is made by the employer. This is his right, not his obligation. This is stated in Art. 126 of the Labor Code of the Russian Federation, as well as in the letter of Rostrud dated March 1, 2007 No. 473-6-0.