Art. 168 of the Labor Code states that “vacation leave unused on time must be granted by the employer to the employee by September 30 of the following calendar year”.
And that on September 30 is approaching, certainly many employees will be wondering in the near future whether they have to hurry with the use of overdue holidays. So that from 2024.
Although after reading the article cited above, it could be thought that such arrears should be “caught up” and the application for vacation leave, the situation is not so simple.
The recipe is more addressed to the employer than to an employee. And it is used in the event that the boss is notoriously refusing to consent to vacation, e.g. as part of care for “work continuity”. Art. 168 ensures that the employee is not injured.
So if you apply for a vacation overdue for a long time, but the supervisor sells you, then After September 30, he will not be able to do it anymore. Otherwise, it will break the rules.
The problem arises when the employee does not want to go on overdue vacation by the end of September and wants to accumulate it, for example or use it at another time. In such a situation, the law is imprecise and allows a “forced” leave only during the termination of the employment contract.
Your courts, PIP his own
The case is not new and it raises doubts for many years. The first rulings of the Supreme Court in this case were made over 20 years ago.
“Granting holiday leave pursuant to Article 168 of the Labor Code for previous years in the first quarter of the following year (currently: until September 30 of the following year – it is about overdue leave) does not require the consent of the employee” – is a judgment of the Supreme Court of September 2, 2003 (reference number I PK 403/02). Similar reasoning can be found in the Supreme Court judgment of 7 May 2008 (reference number II PK 313/07), according to which” pursuant to art. 168 of the Labor Code, the employer's obligation to grant the employee overdue holiday leave within the time limit in this provision, and the granting of leave within the indicated time does not require the employer to obtain the consent of the employee and is binding for him. “
If the Supreme Court said so, then there should be no doubt? Not really. The National Labor Inspectorate claims differently.
“In turn, according to the position of the Legal Department of the Chief Labor Inspectorate of the National Labor Inspectorate, a spontaneous granting by the employer, against the will of the employee, except for the case specified in Article 1671 KP (it is a notice period – ed.), Even if it is overdue leave, enters the sphere of employee rights and as such is legally unacceptable ” – we read in the position of the National Labor Inspectorate.
PIP, however, points out that the employer “may oblige employees to determine the deadlines when they want to take advantage of outstanding holidays In specific regulations, and the lack of cooperation in this respect to sanction the permissible cleaning measures provided for in art. 108 of the Labor Code “.
The expert responds
So what if the employee does not want to go on an overdue vacation and do not think about this right to 30 September? – The Labor Code does not regulate such a mechanism as “forced” vacation leave. The exception is, of course, the notice period – says Business Insider prof. Monika Gładoch, legal advisor and labor law specialist.
As he explains, The employer has no tools in such a situation. At least they are not indicated directly in the Labor Code. The paradox is even greater because at the same time it is threatened with sanctions from the National Labor Inspectorate.
Prof. Gładoch, however, points to the jurisprudence of the Supreme Court, which at the beginning of the 21st century indicated several times that in such a situation you could send an employee on vacation without his consent. – But this is only an interpretation. In addition, law -forming, because the recipe does not constitute it in itself – says the expert.
What's more, the position of the National Labor Inspectorate indicates the opposite. According to PIP, employers are basically without a good way.
Business Insider Polska's interlocutor adds that In such a situation, the employer may try to press on the employee and, for example, give him an order to use leave. – In the case of PIP control, it is also good to direct the request in writing to indicate the dates on which the employee intends to take the overdue leave – he says.
In her opinion, this may be a soothing circumstance in the case of control. – You can also look at such persistent holidays from a different perspective, namely as a violation of health and safety rules – says prof. Gładoch.
He also reminds that in the times of pandemic in the so -called We were dealing with the Covid act, which allowed the employer to issue a vacation order. This recipe It has not been introduced to the Labor Code, and the Covid act no longer applies.
