Can an employee be sent on vacation leave without their consent?
Vacation leave is one of the most important rights of people employed under an employment relationship. Its purpose, as the name suggests, is to give the employees an opportunity rest and regenerate. That is why the Labour Code clearly states that the right to leave cannot be waived, and the only situation in which, instead of exercising this right in kind, it is possible to receive a cash equivalent, is the termination of the employment relationship. Vacation leave is an annual, uninterrupted and paid break from work performance, which should be granted in the calendar year in which the employee acquired the right to it. In practice, however, there are very common situations when the employee does not use the annual leave by 31 December. We have then what we call an overdue leave.
Can an employer send an employee on vacation leave without their consent?
It is obvious that exercising the right to leave by an employee may sometimes carry the risk of disorganisation of the work process in a given company. In order to reconcile these two aspects, the legislator pointed out the need to create a leave plan or to set a leave date with employees. For this reason, granting vacation leave is, in principle, a bilateral act – it requires cooperation between the employee, who should apply for leave on a given date, and the employer, who should every time give consent to this leave. However, there are two situations when it is considered that the employer may unilaterally oblige the employee to take leave.
First one – that does not raise any doubts among experts – is the institution regulated in Art. 1671 of the Labour Code. This provision applies to granting leave during the notice period. Regardless of which party submitted the termination notice, the employer has the option of obliging the employee to take overdue leave and current leave pro rata to the duration of the contract. Such leave is granted without the employee’s application, and the leave is not taken into account in the leave plan. The employer is the one that indicates, preferably in writing, how many days and on what exact date the employee is to take leave. Importantly, unilaterally placing an employee on leave is not possible if the employment relationship has been terminated by agreement of the parties – although, of course, in such a situation the employer and the employee may mutually decide that the employee takes leave in the period preceding the termination of the employment relationship.
The second situation, in which it is assumed that the employer may oblige the employee to take vacation leave even though the employee does not consent to it, does not result directly from the provisions of labour law, but from judicial decisions. The Supreme Court inferred such possibility from the wording of Art. 168 of the Labour Code, which states that leave not taken by the end of the calendar year for which an employee is entitled to take it, should be granted to the employee no later than on 30 September of the following calendar year. In the judgement of 24 January 2006 (case file no. I PK 124/05), it was emphasised that it is not possible to derive from the wording of Art. 168 of the Labour Code the condition of obtaining the employee’s prior consent to the date of taking overdue leave indicated by the employer. This view was upheld by the Supreme Court in its judgement of 7 May 2008 (case file no. II PK 313/07). An argument in favour of assuming that the employer may unilaterally send an employee to overdue leave is also the fact that it is the employer who is responsible for failing to grant the employee leave within the statutory time limit, i.e. by the end of a given calendar year or, in justified circumstances, by the end of the third quarter of the subsequent year. The fine for the above-mentioned offence may range from PLN 1,000 to PLN 30,000.
However, it should be borne in mind that the National Labour Inspectorate (PIP) expressed a slightly different opinion on this matter. This authority is of the opinion that the employer can only oblige employees to take overdue leave at such a date as to meet the code requirement to take leave by 30 September. The employer cannot, however, unilaterally impose specific dates. Therefore, according to PIP, the same rules that apply to overdue leave should apply to current leave as well, i.e. scheduling the leave in the leave plan, agreeing the date by the employee and the employer, and applying for leave by the employee. If the employee fails to take action aiming at taking overdue leave within the statutory time limit, the employer may apply a disciplinary penalty, such as a warning or a reprimand. As a side note, it is also worth mentioning that the National Labour Inspectorate allowed the possibility of unilaterally sending an employee on overdue leave, without agreeing on the date with them, in exceptional circumstances, such as an epidemic threat. This right of the employer was also included in the provisions of the so-called special Covid law. Currently, however, there are no grounds to invoke this possibility.
Taking into account the lack of a uniform stance, before an employer decides, based on the Supreme Court’s jurisprudence, to impose a time limit on an employee to take overdue leave, it is worth first making every effort to ensure that the leave is granted in accordance with the principles set out in the Labour Code. The employer should regularly check and provide employees with information about the status of overdue leaves. When starting to create vacation plans, it is important to emphasise the need to plan both current and overdue leave. If an employee does not cooperate with the employer in order to set a mutually convenient date for taking leave, it is worth obliging the employee in writing to take overdue leave by the end of the third quarter. Only if this does not work, the employer may decide to unilaterally place the employee on leave, although keeping in mind that in the event of a dispute, the court will take into account the circumstances of a given factual situation and will not necessarily uphold the view expressed in previous judicial decisions.
Does overdue vacation leave expire?
The issue of overdue leave is also closely related to the issue of its limitation period. Even though the employer may be fined for failing to grant an employee leave within the statutory time limit, this does not mean that the overdue leave is lost after 30 September. Pursuant to Art. 291§1 of the Polish Labour Code, claims arising from the employment relationship are subject to a statute of limitations after three years from the date on which the claim became due. This provision also applies to the right to vacation leave. It is not entirely clear since when the three years should be counted. The jurisprudence holds that the limitation period begins, as a rule, at the end of the calendar year for which the leave is due, unless the leave has been postponed to the next year for reasons attributable to the employee or employer. Then the limitation period should be counted from 1 October of the year following the year for which the leave is due (judgement of the Supreme Court of 11 April 2001, case file no. I PKN 367/00). Due to the fact that it is not easy to clearly indicate situations that would justify the limitation period starting immediately after the end of a given calendar year, in practice it is generally accepted to count three years from the end of the third quarter of the subsequent year, especially since it is to the benefit of the employee.
Example
As of 30 September 2024, the employee has 15 days of vacation leave for 2023 to take. Employee’s claim for leave will expire on 30 September 2027.
In addition to standard reasons that interrupt or suspend the running of the limitation period, such as force majeure preventing the pursuit of claims or taking steps to pursue a claim before the competent authority, the Labour Code provides in Art. 2931, a special regulation relating only to the limitation period for claims for vacation leave. The provision stipulates that the limitation period for a claim for vacation leave does not begin, and any commenced period is suspended for the duration of the parental leave.
Example
The employee is on parental leave between 1 November 2023 and 30 November 2024, and they did not take their vacation leave for 2022 and 2023.
The leave for 2022 will expire on 31 October 2027, because the period began on 1 October 2023. Then, after one month, it was interrupted by parental leave and since 1 December 2024, it continues for 35 months.
The limitation period for leave for 2023 should normally start on 1 October 2024, but it is suspended due to the ongoing parental leave. Therefore, the limitation period will begin on 1 December 2024, after the employee returns from parental leave, and it will expire on 30 November 2027.
What is worth emphasising is the fact that the employer, even though the vacation leave has expired, may still grant such leave to the employee. Making use of the statute of limitations is the employer’s right, not their obligation.
Author: Martyna Ścierska Senior HR and Payroll Specialist in the Katowice office of MDDP Outsourcing
