In most workplaces, the first part of the year is the time when employees’ holiday dates are set. This is done either by setting holiday plans or by coming to an individual agreement on the timing of employees’ holidays. Therefore, this is also a good time to lean on the unusual group of employees who do not take their annual leave on time. Below, we explain the employer’s obligations with regard to the granting of leave to employees and possible options to deal with employees who have accrued unused leave.
Both the nature of annual leave and the labour laws enforce the use of leave to rest from work. Cases in which payment of cash compensation for unused annual leave occurs are exceptional. Payment in lieu of leave is only possible in the case of termination of the employment agreement, i.e. when it is not actually possible for the employee to take annual leave.
As a general rule, the employer should grant holidays to an employee in the calendar year in which the employee has acquired holiday entitlement. It is considered that it is sufficient if the employee starts the leave during the calendar year in question, even if the use of part of the leave falls in the following year. However, there are cases where, for various reasons, an employee does not take their annual leave in a given year.
This is both due to the legal impossibility of taking the leave (employee illness, taking maternity leave) and often due to individual decisions by employees to postpone taking the leave. In such cases, the leave takes on the character of outstanding leave. The current regulations prescribe that the outstanding leave must be granted by the employer to the employee by 30 September of the following calendar year at the latest. In such a situation, doubts may arise as to the appropriate course of action when there is a lack of cooperation from the employee in agreeing a date for the taking of outstanding leave or the employee outright refuses to go on leave within the statutory deadline.
It should be noted that granting annual leave to an employee in accordance with legal requirements is an employer’s obligation. Failure to grant leave in its due amount or unjustified reduction of the holiday entitlement constitutes an offense against the employee’s rights punishable by a fine of up to PLN 30,000. It is assumed that in the case of failure to grant outstanding annual leave, the employer’s liability arises after the statutory deadline, i.e. after 30 September of the year in which the leave became outstanding.
The employer undoubtedly has the right to unilaterally decide to grant annual leave during the notice period of the employment agreement. During this period, the employee is obliged to use the leave and cannot oppose the employer’s decision to use the leave to which they are entitled, including any outstanding holiday leave. There are no provisions allowing explicitly for such a power of the employer in relation to employees whose employment agreements have not been terminated. The employee’s failure to co-operate in agreeing a date for the use of outstanding leave may be considered in the context of the employee’s failure to comply with the established organisation and order of work, resulting in the employee’s liability for disciplinary action. However, applying disciplinary measures is not the only solution for employers in such situations. Fortunately, court case law is also helpful in this regard, according to which the employer may grant outstanding leave even without the employee’s consent. Since the regulations clearly indicate the deadline for using outstanding leave, and its violation may trigger the employer’s liability, it is permissible to unilaterally direct the employee to take time off to use outstanding leave. However, we recommend that before unilaterally granting outstanding leave, the employer should attempt to agree a date with the employee. If the employee is uncooperative in doing so, or if they agree to a date that violates the statutory deadline, the employer should exercise its power to unilaterally decide to grant outstanding leave.
Employers should take appropriate steps to ensure that annual leave is taken in accordance with the regulations, i.e. preferably agreeing with employees on leave dates falling within the calendar year in which employees become entitled to leave. Above all, the regulations in this regard provide an adequate guarantee of employees’ right to rest, which is also in the interest of employers who wish to have a rested and efficient workforce. However, in situations where annual leave is not taken in a given year and the leave becomes outstanding, it is worthwhile to implement appropriate procedures to enforce the granting of outstanding leave, even without the consent of the employees concerned.
