Unused holiday leave for 2021

30 September 2022 is the deadline for taking the unused holiday leave for 2021. Paid annual leave is guaranteed by the Labour Code. Employees are entitled to the period from 20 to 26 days of leave depending on their length of service.

Holiday leave entitlement

The employer is obliged to grant annual leave in the ongoing calendar year during which the employee has become entitled to it. However, occasionally it is not entirely possible.

The only accepted exceptions to this rule are as following:

the employee requests to postpone the start of their chosen leave
reasons arising from the particular needs of the employer,
excused absence from work,
interrupted leave in situations indicated in the legislation or where the employee has been recalled from leave.

Important note:
If an employee does not use all their leave entitlement at the end of a calendar year, on 1 January this leave becomes unused leave. The deadline for granting unused leave will be met if the first day of leave falls on 30 September (even if the end of the leave falls after this date).

Duvet Day / Requesting an emergency leave

The obligation in question does not apply to the 4 days of duvet day entitlement. This entitlement is only for a given calendar year and, if not taken by the employee, does not carry over to the following year. In practice, if an employee has not requested any emergency leave in a given year, or has taken less than 4 days of such, then it means that this leave will not be carried over to the following year.

Agreeing terms for setting the dates for holiday leave

It is principally understood that any leave should be agreed with the employee. Any doubts in this regard might result in the possibility of the employer issuing a unilateral, binding order to take the unused leave within the period provided for in the Labour Code. Some rulings indicate that an employer, when granting an employee unused annual leave until 30 September, is not obliged to obtain the employee’s consent, however some views regarding this very matter take an opposite stance. Therefore, it is advisable for the employer, in consultation with the employee, to set a date for the use of the unused holiday leave.

Cash allowance for unused leave

Holiday leave cannot be exchanged for a cash equivalent. As a general rule, it is understood that any days off should be used as prescribed by law as time for rest and recuperation. An exception to this is accepted in the event of the employee not managing to take their leave days they are entitled to before the end of the employment relationship. Only then shall they be entitled to holiday pay for these days.

What if the employer does not grant unused leave by 30 September?

In a situation where an employee does not start their holiday leave they are entitled to by 30 September, they will still be able to take the leave until the statute of limitations expires. Holidays are time-barred up to three years beginning with the date they became due. The commencement of this period is:

at the end of the calendar year to which the leave relates, or
if the leave has been postponed for that year for reasons attributable to the employee or the employer, then no later than the end of September of the following year.

IMPORTANT NOTE!

If an employer fails to grant an employee’s annual leave they are entitled to or unjustifiably reduces the amount of annual leave, they commit an offence that is punishable

with a penalty of between PLN 1,000 and PLN 30,000.

Legal basis:
– Article 163, Article 164, Article 165, Article 166, Article 167, Article 168, Article 282 § 1 item 2, Article 291 § 1 of the Act of 26.06.1974. – Labour Code (Journal of Laws of 2020, item 1320),
– Article 15gc of the Act of 2.03.2020 on special solutions related to prevention, prevention and combating of COVID-19, other infectious diseases and crisis situations caused by them (Journal of Laws of 2020, item 1842).

Case law:
– judgment of the Supreme Court of 11.04.2001, I PKN 367/00,
– judgment of the Supreme Court of 2.09.2003, I PK 403/02,
– judgment of the Supreme Court of 24.01.2005, I PK 124/05