According to the provisions of the Labour Code, the employer is obliged to grant an employee a holiday leave for a given calendar year by 30 September of the following calendar year at the latest. Apart from random and unexpected events (i.e. illness of the employee), failure to grant the holiday by the employer will constitute an offence against the employee’s rights, threatened with a fine.
As a result of an uncertain situation resulting from the coronavirus pandemic, the possibility of cumulation of holiday leave not taken in the previous calendar year and the current one may endanger the proper functioning of the workplace. From the employer’s side the danger might be the reluctance to use the employee’s leave and thus exposing the employer to possible legal repercussions.
In order to avoid this risk in the period from July to September 2020, the law provides possible solutions for the employers.
Anti-crisis Shield 4.0
With reference to the Anti-Crisis Shield 4.0 provisions, during the period of an epidemic or emergency, the employer may order an employee to use previously unused holiday leave at a date of his choice, without following the leave plan and without the employee’s consent.
In the Shield’s draft, we find a statement that due to the epidemiological situation, employees may be less interested in taking their due leave. The legislator proposes a mechanism in which an employer may force an employee to take the holiday leave from previous years at a date which the employer considers appropriate.
What is more, a real threat to the employer is the accumulation of leave not taken in the previous calendar year with the current leave – a remedy for this problem is the right to forcibly direct the employee for the outstanding leave.
Opinion of the Polish Supreme Court
According to the legal status before the Anti-Crisis Shield 4.0, the Supreme Court expressed a view that “an employer may send an employee on an outstanding leave, even if the employee does not agree to it”. However, this statement was not sufficiently established in practice for employers to use it without fear of infringing employees’ rights. The new law therefore confirmed the position previously taken by the Supreme Court.
Bearing in mind the need to ensure the effective functioning of the workplace in the era of a still persistent pandemic, the above solution allows the employer to organize the use of holidays according to the needs of a given enterprise, without the risk of committing an offence against the rights of the employee.
Author: Oliwia Kruczyńska, Junior Associate at Kołecka & Partners LLP
