Employees frequently do not use their annual leave for several years running. Is it possible to provide the employee with all the unused annual leave at once?
According to Art.2 of the Law of Ukraine “On leave” dated 15.11.1996, № 504/96-ВР, (hereinafter − the Law № 504), the right to leave have the citizens of Ukraine, who are in labor relations with companies, institutions, organizations regardless of ownership, type of activity and industry affiliation, as well as work under an employment contract for an individual.
Entitlement to leave is provided by:
- assured granting of leave of definite duration;
- keeping the employment (position) and wages during its period.
Annual basic leave should be granted to employees for duration not less than 24 calendar days for working year, which is counted from the date of conclusion of the employment contract (Art. 6 of the Law № 504).
Annual leave for the second and subsequent years of work could be granted to the employee at any time of the corresponding working year.
Current legislation does not contain a prohibition on granting of an annual leave in the event of their non-use during the year and does not provide for a limitation period, after which the employee loses the right to an annual leave.
It should be noted that the basic and additional annual leaves are to be granted to the employee in such a way that they to be used, as a rule, until the end of working year.
It is prohibited failure to provide the annual leave of full duration for a period of two consecutive years, as well as failure to provide them within working year to persons under the age of 18 years and employees who are entitled to additional annual leave for work in harmful and severe conditions or with the special nature of work (sec.5 of Art. 11 of the Law № 504).
Failure to provide annual leaves within a specified time is a flagrant violation of labor legislation, for which the employer can be brought to financial responsibility under Art. 265 of the Labor Code − a fine in the amount of the minimum wage, as well as to administrative responsibility − a fine on the basis of Art.41 of the Code of Administrative Offences to company officials in the amount from UAH 510 to 1 700.
If the employee, for some reasons, did not used the right to annual leave for several previous years (two, three, four or more years), he/she is entitled to use it, and in the case of dismissal, regardless of the grounds, he/she should be compensated for all unused days of annual leaves, specified in sec.1 of para.1 of Art.4 of the Law № 504 (letters of the Ministry of Labour dated 22.02.2008, № 33/13/116-08 и17.06.2011 г. № 9/242пд).
Therefore, even in case of violation of the granting procedure of the leave by the employer, there is the right of the employee to use the leave for the current year as well as for the previous years.
