Annual leave - when and to whom is it entitled?
Annual leave is one of the privileges of people employed under a contract of employment.The employer must remember that failure to grant a holiday and failure to comply with the relevant provisions is punishable by a fine.
Acquisition of the right to holiday leave
Pursuant to the Labor Code, an employee who starts work for the first time, in the calendar year in which he started working, obtains the right to leave at the end of each working month, in the amount of 1/12 of the leave entitlement to him after working for a year. The employee acquires the right to subsequent leaves in each subsequent calendar year.
Pursuant to this article, the right to leave in the first year of employment grows proportionally as the employment period expires and increases by 1/12 of the leave entitlement for each month worked. The length of leave for employees who have not worked for 10 years is 20 days. Therefore, for each worked month in the first year of work, the employee receives 1 and ⅔ days off.
In subsequent years of employment, pursuant to Art. 154 of the Labor Code, the length of leave is:
- 20 days - if the employee has been employed for less than 10 years,
- 26 days - if the employee has been employed for at least 10 years.
The length of the leave of an employee who works part-time is determined in proportion to the amount of the employee's working time, the incomplete day of leave is always rounded up to a full day. Any unused holiday leave is transferred to the next year and must be exhausted first by September 30 of the following year.
Periods of previous employment are also included in the employment period. If the employee is in two employment relationships at the same time (or more), the period of the previous unfinished employment in the part prior to the commencement of the next employment relationship is also included.
Art. 1541 of the Labor Code
§ 1. The periods of previous employment, regardless of the breaks in employment and the method of termination of the employment relationship, are included in the period of employment which determines the right to leave and the length of the leave.
§ 2. In the case of simultaneous employment in two or more employment relationships, the period of the previous unfinished employment in the part prior to entering into the second or subsequent employment relationship is also included.
Years of education are also included in the employment period. However, if the education was taken in the years of employment, the period of employment or the period of study, depending on which option is more favorable for the employee, is included in the period of work on which the amount of leave depends. Pursuant to article 155 of the Labor Code, the period of work is counted accordingly for the completion of:
- basic or equivalent vocational school - the duration of education provided for in the curriculum, but not more than 3 years,
- secondary vocational school - the duration of education provided for in the curriculum, but not more than 5 years,
- secondary vocational school for graduates of basic (equivalent) vocational schools - 5 years,
- general secondary school - 4 years,
- post-secondary school - 6 years,
- university - 8 years.
The learning periods are not added up.
Watch the video: Holidays - the most important issues
Annual leave - how to grant it to an employee?
The leave is granted on days which are working days for the employee, in accordance with the schedule of working time applicable to him, in the amount of hours corresponding to the employee's daily working time on a given day. Accordingly, one day of leave corresponds to 8 working hours. Granting an employee a leave on a working day in the amount of hours corresponding to a part of the daily working time is allowed only if the remaining part of the leave to be used is lower than the employee's full daily working time on the day for which the leave is to be granted.
Annual leave for part-time employees
A full-time employee works 40 hours a week and is entitled to 20 or 26 vacation days, depending on the length of service. For part-time employees, annual leave is calculated on an hourly basis. An employee who is entitled to 20 days of vacation full-time is employed on a half-time basis, i.e. 10 days of 8-hour vacation - a total of 80 hours of vacation. Depending on the schedule of working hours on individual days, the employee's leave is reduced per hour. Annual leave should cover the entire working day of the person concerned. Granting leave for part of the day is allowed only if the remaining part of the leave to be used is lower than the full daily working time on the day on which the leave is to be granted (Article 154 § 4 of the Labor Code).
Annual leave in an equivalent working time system
For an employee who works in the equivalent working time system, whose daily working time standard is higher than 8 hours, and on the other days of the week, the daily norm is reduced, while maintaining 40 hours of work per week in the adopted settlement period, applying for a leave is slightly different. In such a case, it should be assumed that the day of the granted leave corresponds to the daily working time on the day on which the leave is requested. If on this day the working time exceeds 8 hours a day, it corresponds to 1 day of vacation and the corresponding fraction over this 1 day.
Failure to take the holiday leave in the calendar year
An employee who in a given calendar year has not used the entire leave entitlement does not lose the right to it.
Art. 168 of the Labor Code
Leave unused within the period determined in accordance with art. 163 should be provided to the employee no later than 30 September of the following calendar year; this does not apply to part of the leave granted in accordance with Art.1672.
The employer is obliged to grant the outstanding leave in the first place. The commencement of the overdue leave on September 30 is considered keeping the deadline. The employee does not have the right to take the outstanding leave without the consent of the employer, even if the deadline for its granting has been exceeded. It results from the judgment of the Supreme Court of 5 December 2000 (file reference number: I PKN 121/00) “Notifying the employer about the commencement of outstanding annual leave does not justify the employee's absence from work. The breach by the employer of the obligation to grant the employee a vacation leave for a given year until the end of the first quarter of the following calendar year does not entitle the employee to commence the leave after this date without the consent of the employer. " According to the regulations currently in force, it is the end of the third quarter of the following year. The outstanding leave for 2010 and earlier years could be obtained by the end of March of the following year at the latest.
The employer may grant the employee overdue leave, even if the employee does not consent to it, as the right to vacation leave is specified in the Labor Code and is mandatory and applies to both parties to the contract.
The employer is obliged to grant the employee a vacation leave, while the employee may not waive this right and may not refuse to take the leave granted to him by law.
Annual leave is proportional
In a situation where an employee is employed during a calendar year or does not work the entire year, he should be accrued proportional leave. Pursuant to article 155 of the Labor Code, in the calendar year in which the employment relationship with the employee entitled to the next leave ends, the employee is entitled to leave:
- with the current employer - in proportion to the period of work for that employer in the year when the employment relationship ended, unless the employee used the leave to the extent to which he was entitled or to a greater extent before the termination of this relationship,
- at the next employer - in the following dimensions:
- proportional to the period remaining until the end of a given calendar year - in the case of employment for a period not shorter than the end of a given calendar year,
- proportional to the period of employment in a given calendar year - in the case of employment for a period shorter than the end of a given calendar year
When determining the proportion of proportional leave, it should be taken into account that:
- a calendar month of work corresponds to 1/12 of the leave entitlement to an employee,
- an incomplete calendar month of work is rounded up to the full month,
- if the termination of the employment relationship with the current employer takes place in the same calendar month, the current employer makes the rounding up to the full month.
- when determining the amount of leave, an incomplete day of leave is rounded up to a full day.
If an employee returns to work with the same employer after a break of at least one month caused by:
- unpaid leave,
- parental leave,
- performing basic military service or its alternative forms, periodic military service, military training or military exercises,
- temporary arrest,
- serving a sentence of imprisonment,
- unexcused absence from work,
the provisions for determining the leave from Art. 1551 §1 point 2 of the Labor Code, i.e. in proportion to the period of employment in a given calendar year or to the end of the calendar year, depending on the period of employment. If the break periods, excluding parental leave, fall after the employee acquires the right to leave in a given year, and the employee has not used the days off sooner, the amount of leave of the employee returning to work during the same year is proportionally reduced.
The amount of annual leave after the change in the number of full-time jobs
The annual leave of an employee whose working time has been changed should be calculated in proportion to the working time in which he is employed, and taking into account separately the period of work in individual positions. The Labor Code does not resolve such a case directly, but it is assumed to calculate the amount of annual leave in accordance with the regulations relating to the calculation of proportional leave.
From January 1, 2020, the employee worked part-time. As a result of an agreement with the employer, the working time was increased to full-time from October 1, 2020. An employee is entitled to 26 days of annual leave annually. Calculations should be made with a breakdown into individual periods of employment.
1/4 time job for 9 months (from January to September 2020)
¼ x 26 days = 6.5 → 7 vacation days per year
9/12 x 7 days = 5.25 → 6 days
6 days x 8 hours =48 hours of leave
Full-time job for 3 months a year (from October to December 2020)
26 days x 3/12 = 6.5 → 7 days
7 days x 8 hours = 56 hours of vacation
In total, in 2020, the employee is entitled to 13 days off → 104 hours.
Pursuant to Art. 152 § 1 of the Labor Code, the employee has the right to uninterrupted holiday leave. At the request of the employee, it may be divided, provided that part of the vacation must last no less than 14 consecutive calendar days, including weekends and holidays.
The legal provisions regarding the vacation plan are set out in Article 163 of the Labor Code.
In order to be able to create a vacation plan, the employer must obtain the approval of the company trade union. If the organization does not express it, leave dates are agreed upon with the employee.
The vacation plan is established by the employer, taking into account the employees' requests and the need to maintain the normal course of work. The ready plan must be communicated to employees in any form accepted in a given workplace. The plan must be understandable and legible for employees. Leave on demand is not taken into account in the vacation plan, mainly due to the nature of this benefit - it is impossible to predict when it will be needed, therefore the length of the leave described in the plan should be shortened by 4 days of leave on demand.
The period of leave provided for in the vacation plan can be changed before it begins. However, this must be properly argued by both the employee and the employer, who also has the right to change the vacation date if the employee's absence would cause serious disruptions in the course of work. The employer, in accordance with Art. 165 of the Labor Code is obliged to grant leave on a different date, if the employee cannot start the leave due to:
temporary incapacity to work due to illness,
isolation due to an infectious disease,
appointments for military exercises or training for up to 3 months,
The vacation plan must cover all types of leave: current, overdue and supplementary. The overdue leave is settled in the first place and in accordance with Art. 168 of the Labor Code must be used by 30 September of the following year.
Annual leave during the notice period
Pursuant to Article 1671 of the Labor Code, during the period of notice of termination of the employment contract, the employee is obliged to use the vacation leave he / she is entitled to, if the employer grants him leave during this period. In such a case, the length of the leave granted, excluding the overdue leave, may not exceed the amount resulting from the provisions on proportional leave.
It is up to the employer to decide whether or not to grant an employee a leave of absence during the termination, regardless of whether the termination notice was submitted by the employee or the employer.
According to the judgment of the Supreme Court of April 26, 2011 (file reference number: II PK 302/10) "Granting an employee a holiday leave during the notice period depends only on the will of the employer, which the employee may not object to".
Art. 1671 of the Labor Code speaks of the use of leave overdue during the notice period. Therefore, an employee may be required to use all the outstanding leave, as well as the current leave he / she is entitled to in a given calendar year, calculated pro rata in accordance with Art. 1551 of the Labor Code. This is in line with the judgment of the Supreme Court of April 12, 2007 (file reference number I PK 261/06) “The last sentence of Art. 1671 of the Labor Code, allows for the conclusion that the employer may grant the employee the entire outstanding leave during the period of notice. Only the current leave (...) should be granted in proportion to the period worked for him in the year of termination of employment ”.
If the employee's annual leave is not used during the notice period, the employer is obliged to pay an equivalent for the unused leave after the termination of the employment relationship.
Vacation on request
An employee employed under an employment contract in accordance with Art. 1672 of the Labor Code, they are entitled to 4 days a year of leave on demand, which they can use on the date they specify, but not later than on the day the leave begins, before starting work (so that the employer can make a decision on granting it). The leave on demand is included in the basic dimension of the employee's annual leave, so it is granted for working days, in accordance with the applicable working time schedule.
The employee should notify in a timely manner his or her willingness to take such leave, however, the employer has the right to refuse to grant leave upon request, if the employee's absence proves necessary for the company's interests. An unjustified refusal may incur a fine against the employer. The use of leave on demand by an employee without the consent of the employer is a serious breach of employee obligations, entitling the employer to issue a reprimand to the employee, and this may result in the termination of the employment contract.
The total length of leave on demand during the year may not exceed 4 days. Information about its use is included in the employment certificate, so that when the next employment relationship is established, the employer knows how many days of leave on demand are left for the employee for a given calendar year.
If there are no separate provisions on the submission of requests for leave on request at the workplace, notification of the willingness to use leave on request should be made in any effective way (by phone, e-mail, in person).
It should be noted that any unused days of leave on request are carried over to the following year as regular annual leave. Failure to use the leave on demand does not increase its duration in the following year. Start a free 30-day trial period with no strings attached!
Leave on demand and part-time employment
Every employee is entitled to vacation on demand, even if he or she works part-time, with the same rights as a full-time employee. This also applies to persons employed on the basis of fixed-term contracts and as a replacement. When granting leave on demand to an employee who is employed part-time, the number of hours that the employee should work on a given day is deducted from the hourly amount of leave, and the number of days of leave used is deducted from the pool of 4 days of leave on demand. If you comply with the provisions stipulating that a day of leave corresponds to 8 hours of work, in the case of part-time work, the leave entitlement would be overstated.
The right to leave after using the rehabilitation benefit
The rehabilitation benefit has the same legal nature as the sickness benefit - their function is to replace the remuneration for work during the period of inability to provide it.
Inability to work due to illness, and then receiving a rehabilitation benefit, does not affect the amount of the employee's holiday leave and is entitled to him to the same extent as if he was working all the time. An employee, being on sick leave or receiving a rehabilitation benefit, remains in employment all the time, although he is not working, his employment relationship is not suspended and thus acquires the right to a full-time holiday leave.
Article 155 of the Labor Code lists the periods of inactivity, after which a full-time leave is not granted, only the one calculated proportionally. This article does not mention the period of receiving the rehabilitation benefit, so the same employee is entitled to a full holiday leave after using the benefit.
Dismissal of an employee from vacation leave
The employer has the right to dismiss an employee from leave. Taking such action must be justified by the occurrence of circumstances that could not be foreseen at the time the employee started the leave and the presence of this employee in the workplace is essential.
When recalling an employee from vacation, the employer is obliged to cover the costs incurred by the employee in direct connection with the dismissal. The expenses must be confirmed with relevant documents, and the employee's family's vacation cost may be added to them, if the rest of the family was unable to continue their vacation due to cancellation of leave.
Art. 167 of the Labor Code
§ 1. The employer may recall an employee from leave only if his presence at the plant is required by circumstances unforeseen at the time of the commencement of the leave.
§ 2. The employer is obliged to cover the costs incurred by the employee in direct connection with his dismissal.
The employer's decision is a business order and may not be questioned by the employee, even if, in his opinion, return from vacation is not necessary. The unused part of the leave remains at the employee's disposal and may use it at another time.
Annual leave after maternity and parental leave
Being on maternity and parental leave does not result in a proportional reduction in the length of the annual leave. The period of these leaves is taken as the period of work, which results in the acquisition of the right to leave for the period of caring for the newborn child.
An additional privilege is the provision in Art. 163 § 3, on the basis of which it is possible to grant annual leave immediately after returning from maternity or parental leave. This results in the possibility of an additional extension of the leave and a longer period of staying with the child. Any unused holiday leave is transferred to the following year and must be used by the end of September.
Leave for an employee raising professional qualifications
Raising professional qualifications is gaining and expanding knowledge and skills by an employee, initiated by the employer or after his consent. An employee who raises his professional qualifications acquires the right to training leave and to be released from all or part of the working day for the time necessary to participate in classes. The training leave is:
- 6 days for an employee joining: exams, secondary school-leaving examinations or exams confirming professional qualifications,
- 21 days in the last year of studies - to prepare for the diploma thesis and prepare for and take the diploma examination.
Training leave is granted on days that are working days for the employee, in accordance with the working time schedule applicable to him.
Annual leave for young workers
A juvenile employee is entitled to a vacation leave. The rules for acquiring it are specific and differ from the leave granted to normal employees. The Labor Code, in the chapter devoted to employing juvenile workers, regulates the rules of determining the leave for this group. A juvenile is a person who is 16 years of age and under 18 years of age.
The basic length of leave for a young person is 26 days. However, the length of the leave is different in the first year of employment and in the year in which the young person reaches the age of 18.
The annual leave in the first year of work is acquired by an adolescent 12 days after working the first 6 months and 26 days after the next 6 months of work, it results from Art. 205 § 1 and 2 of the Labor Code.
In the calendar year in which the employee reaches the age of 18, the holiday entitlement is reduced to 20 days. If the holiday entitlement was obtained before the age of 18, this applies both to the holiday for the first year of work and to the following holiday.
In addition, the employer should grant a juvenile leave during school holidays, and if he has not yet acquired the right to leave, the employer may, at the request of the juvenile employee, grant the leave in advance for the holiday period.
During the school holidays, the employer is also obliged to grant unpaid leave if a juvenile employee submits such an application. Unpaid leave may not exceed 2 months, including holiday leave. The employer may grant longer leave, but it is not his obligation. Contrary to the provisions of the employment relationship, if an adolescent employee is granted unpaid leave, his period is included in the period of work on which employee rights depend.
Pursuant to Art. 205 § 5 of the Labor Code, in matters not covered by the provisions of the chapter on holiday leaves for juvenile employees, the general provisions of the Labor Code from section 7 are applied, which at the same time means that a juvenile employee is also entitled to a leave on demand of 4 days in a calendar year.
Days off for the trainee
The trainee is not employed under an employment contract, but is entitled to days off. The trainee acquires the right to days off after the lapse of 30-day periods, amounting to 2 days for each 30 calendar days worked. In the last month, the entrepreneur with whom the trainee works is obliged to grant leave before the end of the internship.
The days off do not have to be used every time you have worked 30 days. If both parties agree, the trainee's leave may be aggregated and taken once for a longer period of time, but it must only cover periods worked, not future ones, for which he has not yet acquired the right to holidays.
If the trainee does not use the days off, he / she does not receive an equivalent in return, because the days off are not holidays regulated by the Labor Code.
Additional annual leave
The privileges of disabled employees are regulated by the Act of 27 August 1997 on vocational and social rehabilitation and employment of disabled persons. Disabled persons are entitled to an additional 10 days of holiday leave, which is granted on the same terms as the basic holiday leave. The right of additional leave is acquired by a person who has a certificate of the degree of disability. The first additional annual leave is due after working one year after being classified as one of the degrees of disability. One year after the disability certificate was issued, the employee acquires a full 10 days of holiday leave, without calculating the proportion, even if he / she is entitled to it only at the end of the calendar year. Any unused additional leave is carried over to the following year as an outstanding leave to be taken by the end of September.
The right to additional leave is not granted to persons whose basic length of leave exceeds 26 days, or to persons who are entitled to additional leave under separate regulations.
Additional vacation leave is granted to a social worker who is employed in a social welfare center or a poviat family support center, whose duties include social work and conducting community interviews. An employee acquires the right to additional leave after working for at least 5 years in a position with the above-mentioned obligations. Employment may not be interrupted during these 5 years. The right to another additional leave is acquired after working for the next 2 years, which is generally calculated from the day following the last day of the previous leave. Start a free 30-day trial period with no strings attached!
Judges and prosecutors
Persons working in the position of judge or public prosecutor are entitled to an increased amount of annual leave depending on the length of service. In addition to the basic period of leave, judges and prosecutors acquire the right to:
- 6 working days, after 10 years of service as a judge or prosecutor,
- 12 working days, after 15 years of service as a judge or prosecutor.
The period of work includes all periods of employment in the court or public prosecutor's office in the positions of: assessor, judge, public prosecutor, as well as periods of practicing the profession of an advocate or legal advisor.
A teacher employed in a school with summer and winter breaks is entitled to annual leave corresponding to the duration of these breaks. During the holidays, the teacher may be required to conduct exams, perform work related to the end or beginning of the school year, develop a school set of programs and participate in professional development. These activities may not exceed 7 days in total.
If the institution does not provide for school holidays, the duration of the teacher's holiday leave is 35 working days within the time specified in the holiday schedule.
For the period of the annual leave, the teacher receives remuneration as if he was working at that time.
Controllers of the Supreme Audit Office
A person employed for a period of at least 10 years as an auditor at the Supreme Audit Office is entitled to an additional 6 working days leave, and after 20 years of service - 12 working days. The inspector is also entitled to a paid health leave, not exceeding a total of 12 months.
The annual leave for a legal adviser employed under an employment contract is defined, as in the case of other employees, by the Labor Code.
The difference between the work of a legal advisor and other employees results from the fact that he performs work in a place specified by the employer only for part of the working hours, because for the remaining time he works outside the employer's seat, e.g. in court. Pursuant to the Act on Legal Advisers, this time should be included in the working time. Attorneys at law in the place specified by the employer cannot work for less than of the working time specified in the employment contract. Therefore, if a solicitor is employed full-time in a place specified by the employer, he must work 16 hours a week (⅖ of 40 hours a week), i.e. 2 days, 8 hours each. Work performed outside the employer's seat is included in the working time, so the legal counsel is also entitled to annual leave for this time. It should be granted both for the days when the attorney-at-law performs work at the employer's office and outside it. Therefore, when granting an attorney-at-law leave for a week, his or her leave pool should be reduced by 40 hours - 5 days, and not only by 2 days, on which he is obliged to stay in the place specified by the employer.
Apart from the holiday leave, the employee is entitled to take unpaid leave. It can be used for any purpose, but also to work for another employer.
Unpaid leave is granted at the request of the employee, the employer has the right not to consent and not to grant the leave. When granting unpaid leave, the duration of which exceeds 3 months, the parties may provide for the admissibility of recalling an employee from the leave if there are important reasons.
The period of unpaid leave used for purposes other than the performance of work for another employer is not included in the period of work on which employee rights depend. On the other hand, when the unpaid leave is granted in order to perform work in another company, the leave time is included in the period of work on which the employee's rights with the current employer depend.