Can the employer force you to take annual leave?

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Pursuant to the Labor Code, an employee is entitled to a vacation leave each year. As a rule, the employer should allow the employee to take the leave due to him in a given year. Read and find out if the employer may force you to take a vacation leave?

It is worth recalling that pursuant to Art. 152 of the Labor Code, an employee is entitled to an annual, uninterrupted, paid leave, hereinafter referred to as "vacation". The employee may not waive his holiday entitlement. Thus, the employee may take the vacation leave after submitting the appropriate leave application, while the employer's decision as to whether it should be granted. It should be remembered that the leaves are granted to employees in accordance with the vacation schedule agreed for a given year (Art. 163 of the Labor Code).

Can the employer force you to take a leave of absence?

Sometimes employers believe that they can instruct the employee to take the leave he is entitled to, within the time limit set by him. Admittedly, according to Art. 161 of the Labor Code, the employer is obliged to grant the employee a leave in the calendar year in which the employee obtained the right to him, however, referring to the above provision does not entitle the employee to be compelled to leave.

According to the judgment of the Supreme Court of 25 January 2005, ref. No. act I PK 124/05: the employer is obliged to grant the employee a vacation leave in a specific size and period specified according to the established rules, and on the other hand, the employee may not waive the right to leave (cf. Article 152 § 2 of the Labor Code) and may not refuse to take the leave granted in accordance with the provisions of the labor law. Although the employer should consent to the employee's leave in accordance with his vacation application and vacation plan for a given year, while maintaining the normal course of work in the workplace, he may not grant leave contrary to the employee's expectations. Ordering by the employer to use the leave (except for the exceptions described below) without the consent of the employee will violate the rules of granting leaves specified in the Labor Code. An employer who violates the provisions on the granting of holiday leaves, is exposed to a penalty imposed by the National Labor Inspectorate, as well as a fine. Practices that violate the granting of holiday leaves may be reported by employees to the National Labor Inspectorate (PIP) that is inconsistent with the Labor Code.

Example 1.

Due to the holiday period and reduced demand for produced materials, the employer decided to impose leave dates on his employees. He ordered all employees to write out leave requests in the period from July 1, 2017 to July 14, 2017 and ordered them to use the mandatory leave. In view of the above, it should be stated that the employer violated the provisions of the Labor Code in the field of employee leaves. It cannot order employees to take leave without consulting them and against their expectations.

When should the employer instruct the employee to take the vacation leave? - exceptions

According to the judgment of the Supreme Court of September 2, 2003, ref. No. act I PK 403/02: provision of art. 168 of the Labor Code states that the leave unused according to the vacation schedule should be granted to the employee no later than the end of the first quarter of the following calendar year. In such a case, the employer is not obliged to agree with the employee on the date of taking the leave, but must grant him the leave within the period specified in the provision referred to above. Granting on the basis of art. 168 of the Labor Code, the annual leave for the previous years does not require the employee's consent in the first quarter of the following year, also when the notice period for the employment contract runs at the same time. The claimant's use of the outstanding leave during the notice period does not give rise to a demand for a cash equivalent.

In view of the above, the first of the exceptions, when an employer may compulsorily send an employee on vacation, is the possibility for him to use the outstanding leave during the notice period. Thus, the employee is obliged to take the leave during this period, if granted by the employer. According to the judgment of the Supreme Court of January 25, 2005, ref. No. act I PK 124/05: The employer may send an employee on outstanding leave, even if the employer does not consent to it.

The second exception, when the employer may send an employee on compulsory leave, is the use of the leave during the period of notice, but in proportion to the time worked in a given year for which the leave is due.

Example 2.

On April 30, 2018, the employee received a notice of termination of the employment contract with one month's notice. In the wording of the notice, the employer indicated that the employee should use the outstanding leave for 2017 during the notice period from May 1, 2018 to May 18, 2018, and then granted the employee a holiday leave for 2018 in proportion to the period of work at him. In view of the above, the employee should comply with the employer's instructions and use the vacation leave in accordance with the provisions indicated in the content of the termination of the employment contract.

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It is also worth quoting the judgment of the Supreme Court of April 26, 2011, file no. Act II PK 302/10, according to which: granting an employee a vacation leave during the period of notice (Article 1671 of the Labor Code) depends only on the will of the employer, which the employee cannot oppose. Exemption from the obligation to perform work during the notice period may result from an agreement concluded between the employer and the employee. Then, an additional agreement is concluded between the parties to the employment relationship. If such an agreement does not imply the employee's obligation to use the vacation leave during the period of non-performance of work, the employer may not oblige the employee to use the leave during this period.

In view of the above, it is worth remembering that an employer who has decided to dismiss an employee from work and send him on leave during the notice period should remember the correct order. Therefore, the employee should first use the vacation leave granted to him by the employer, and then indicate the dates of the employee's dismissal from work.

It should be noted that the position of the Legal Department of the Labor Inspector (reference number GNP-110-4560-46 / 07 / PE) differs from the position indicated in the case law of the Supreme Court. According to this position, the employer cannot force an employee to take the vacation leave without consulting him and at a time convenient for the employer. The exception is the requirement for the employee to use the leave during the notice period or to use the outstanding leave which he did not use for the previous year by September 30.

In conclusion, it should be emphasized that the Labor Code grants employees the right to an annual, uninterrupted, paid leave, which the employee may not waive. The employer should grant the employee a vacation in a given calendar year in accordance with the vacation schedule established in the workplace and vacation requests. The employee should take the leave by September 30 of the following year at the latest. The employer cannot force the employee to use the outstanding leave, he can only inform and remind about the need to take the leave. There are two different views on the possibility of forcing an employee to take leave. In accordance with the above-mentioned jurisprudence, the employer may force the employee to use the outstanding leave by September 30, but the employee does not have to consent to it. However, according to the position of the Legal Department of the Labor Inspector, the above compulsory use of the holiday leave is unacceptable without the consent and application of the employee. It is worth remembering about the exceptions when the employer may impose the use of leave by the employee, i.e. the granting of holiday leave or the overdue leave during the notice period.