Is it possible to grant holiday leave for downtime?


The continuity of the workplace is sometimes disrupted. This may be due to various reasons, such as delays in the delivery of the necessary prefabricated elements, breakdowns or random events (e.g. fire). This is usually the reason for downtime at work, which from the employer's point of view is always a disadvantage. Does downtime mean vacation for the employee?

Downtime concept

With a downtime within the meaning of Art. 81 of the Labor Code, it occurs when an employee - despite his readiness to perform work - fails to perform work for reasons relating to the employer, of a technical or organizational nature. In the resolution of October 16, 1992, I PZP 58/92, the Supreme Court stated that the reduction in the demand for work resulting from economic reasons, and not resulting from disturbances in the functioning of the workplace caused by technical or organizational factors causing the work in whole or in part in a given period, it is actually (physically) impossible to carry out a productive activity, it cannot be considered a reason of such kind that the resulting break in work could be classified as downtime.

Compensation for downtime

For downtime, an employee is entitled to remuneration resulting from his personal grade determined by an hourly or monthly rate, and if such a component has not been separated when determining the remuneration conditions - 60% of the remuneration. The remuneration for downtime cannot be lower than the minimum remuneration for work (Article 81 § 1 of the Labor Code). If the downtime was caused by the employee's fault, the remuneration is not due. In the event of downtime caused by weather conditions (e.g. in the construction industry), an employee employed in work dependent on these conditions is entitled to remuneration if the provisions of the labor law so provide (Article 81 § 4 of the Labor Code). In practice, relevant regulations in this regard are introduced in the collective labor agreement or remuneration regulations in force at the employer's.

Entrusting the employee with another job

Pursuant to Art. 81 § 3 of the Labor Code, the employer may entrust the employee with other appropriate work during the downtime, the performance of which is entitled to the remuneration provided for this work, however not lower than the remuneration for the downtime pursuant to Art. 81 § 1 of the Labor Code (if the stoppage was caused by the employee, he / she is entitled only to the remuneration provided for the work performed).

Example 1.

The plant has experienced a downtime due to an assembly line failure in the production department. During the downtime, the employer entrusted an employee of this department with cleaning works in the warehouse. The employee's remuneration under the employment contract is determined by a fixed monthly rate and amounts to PLN 3,600.00. Therefore, the remuneration for downtime must be the equivalent of this amount on a monthly basis, unless the work in the warehouse entrusted to the employee during the downtime would be remunerated higher than his work in the production department. Then the employee would have to be paid the higher amount for the work in the warehouse.

The organizational solution consisting in entrusting the employee with other work during the downtime is beneficial for the employer. We are then dealing with a situation in which the employee does not remain idle, but performs a specific job for the employer.

If the employer is not able to entrust the employee with other work, he is forced to bear the costs related to the obligation to pay remuneration for downtime, without receiving anything in return from the employee (for reasons beyond the employee's control). Therefore, it is worth considering whether, in such circumstances, the way to limit the negative consequences of unproductive payment of remuneration costs for downtime may not be to grant employees holiday leaves during downtime.

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The essence of the holiday leave

Annual leave is an annual, paid leave of an employee from performing work in order to regenerate his strength after performing it for a longer period of time. The rule is to grant this leave in kind (i.e. as holidays), and only exceptionally, it is allowed to pay a cash equivalent - in the case of failure to use the leave, in whole or in part, due to termination or expiry of the employment relationship. It should be emphasized that the right to holiday leave is an employee's personal and non-transferable right - the employee may not waive it (Art. 152 and Art. 171 § 1 of the Labor Code). The provisions on vacation leaves implement one of the basic principles of labor law - the principle of the right to rest. It was expressed in art. 14 of the Labor Code, which states that the employee has the right to rest, which is provided for by the provisions on working time, days off from work and vacation leaves.

Who decides when the holiday leave is taken?

As a rule, leaves are granted in accordance with an annual leave plan set by the employer, who should - as far as possible - take into account employees' requests, taking into account the need to ensure the normal course of work. The employer may not establish a vacation schedule, if the company trade union organization agrees to do so (for an employer who does not have a trade union organization, such consent is not required for obvious reasons). In the absence of a vacation plan, the employer must, however, set a vacation date after consultation with the employee (Art. 163 of the Labor Code).

The Labor Code also provides for the following options for ad hoc changes to previously agreed leave dates:

  • postponement of the leave date at the request of the employee motivated by important reasons (Article 164 § 1 of the Labor Code);
  • postponing the leave date due to the special needs of the employer, if the employee's absence would cause serious disruptions in the workflow (Art. 164 § 2 of the Labor Code);
  • postponement of the leave date resulting from the inability to commence the leave at the set date for reasons justifying the absence from work (Article 165 of the Labor Code);
  • interruption of leave due to temporary incapacity to work due to illness, isolation due to an infectious disease, undergoing military exercises or military training or performing territorial military service on a rotational basis for up to 3 months, and maternity leave (Article 166 of the Labor Code);
  • dismissal of an employee from leave, when his presence at the plant is required by circumstances unforeseen at the beginning of the leave (Art. 167 of the Labor Code);
  • granting an employee a leave during the period of termination of an employment contract (Art. 1671 of the Labor Code).

Can annual leave be taken during downtime?

If the employee uses the vacation leave granted to him in accordance with the vacation schedule or within the period agreed between him and the employer, or the leave, the date of which was changed ad hoc in one of the above-mentioned procedures specified in Art. 164-1671 of the Labor Code - and during this leave the employer will have a downtime within the meaning of Art. 81 of the Labor Code, there are no legal obstacles for the employee's vacation leave to be continued during the downtime. In such circumstances, the overlap between downtime and leave is accidental.

The situation is different when there is a downtime at the employer and it is for this reason that he intends to send employees on holiday leaves. In such a case, we would be dealing with the granting of a vacation leave for a purpose other than rest and regeneration of the employee's strength. Leave here would be caused by reasons on the part of the employer - technical or organizational disturbances in the functioning of the workplace.

To sum up, granting employees a holiday leave to fill in with the downtime is not allowed under the applicable provisions of labor law, as it would be contrary to the essence and purpose of the holiday leave.