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Publication date: 19.04.2024
active and purposeful military lawyer with more than 4 years of experience
The employer may refuse to grant leave to the employee, but in cases where such leave is granted by agreement of the parties.
Article 12 of the Law of Ukraine dated March 15, 2022 No. 2136-IX "On the Organization of Labor Relations in the Conditions of Martial Law" (hereinafter - Law No. 2136) provides that during the period of martial law, the employer may deny the employee any type of leave ( except for leave due to pregnancy and childbirth and leave to take care of a child until the child reaches the age of three), if such an employee is involved in the performance of work at critical infrastructure facilities.
All other employees (both in peacetime and during martial law) may be denied only those vacations granted by agreement between the employee and the employer.
Examples of granting leave in practice
So, for example, during the period of martial law, the employer may, at the request of the employee, grant him leave without salary without the time limit established by the first part of Article 26 of the Law of Ukraine dated November 15, 1996
No. 504/96-BP "On vacations" (30 calendar days, in accordance with the amendments made by the Law of Ukraine of November 22, 2023 No. 3494 "On Amendments to Certain Legislative Acts of Ukraine Regarding Regulation of Provision and Use of Vacations, as well as Other Matters" ).Accordingly, since such a leave without pay is granted by agreement between the employee and the employer, the employer may refuse the employee such leave (the agreement did not take place).
In accordance with Article 79 of the Labor Code of Ukraine (hereinafter referred to as the Labor Code), the sequence of vacations is determined by schedules, which are approved by the employer in agreement with the elected body of the primary trade union organization (trade union representative), and are brought to the attention of all employees.
During the drawing up of schedules, the interests of production, personal interests of employees and opportunities for their rest are taken into account.
The specific period of granting annual vacations within the limits established by the schedule is agreed between the employee and the employer, who is obliged to notify the employee in writing about the date of the start of the vacation no later than two weeks before the period established by the schedule.
Dividing the annual leave into parts of any duration is allowed at the employee's request, provided that the main continuous part of it will be at least 14 calendar days.
The unused part of the annual leave must be given to the employee, as a rule, before the end of the working year, but no later than 12 months after the end of the working year for which the leave is granted. However, during the period of martial law, this norm, provided for by the second part of Article 12 according to Law No. 2136, does not apply.
In case of postponement of annual leave, the new term for its provision is established by agreement between the employee and the owner or the body authorized by him (Article 80 of the Labor Code).Thus, the employer can refuse to grant the employee annual leave outside of the periods specified in the vacation schedule.
When the employer cannot refuse leave
The employer may not deny employees who are not involved in the performance of work on critical infrastructure objects, the granting of vacations, the provision of which is carried out in a mandatory manner (annual vacations within the time limits established by the schedule, educational, creative, for participation in competitions, employees, who have children, etc.). But in accordance with the third paragraph of part 1 of Article 12 of Law No. 2136, during the period of martial law, the granting of any type of leave to an employee (except for leave in connection with pregnancy and childbirth, leave to care for a child until the child reaches the age of three and leave in in connection with the adoption of a child) in addition to the annual basic leave provided for in the first paragraph of this part, by the decision of the employer, may be carried out without saving wages.
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