Unused leave for 2022 – when to use it?
September 30, 2023 is the deadline for using outstanding leave for 2022. Paid holiday leave is guaranteed in the Labor Code. Depending on the length of service, the employee is entitled to 20 to 26 days of leave. Claims for leave for the previous year will expire in 2026.
The right to leave
The employer is obliged to grant annual leave during the calendar year in which the employee became entitled to it. However, it often happens that this is not possible.
The only permissible exceptions to this rule are:
- postponing the leave date at the express request of the employee,
- reasons resulting from the special needs of the employer,
- justified absence from work,
- interrupted leave in situations specified in the regulations or when the employee has been recalled from leave.
If an employee does not use the full amount of leave by the end of a given calendar year, on January 1, this leave becomes accrued leave. The deadline for granting overdue leave will be met if its first day falls on September 30 (even if the end of the leave falls after that date).
Vacation on request
The obligation in question does not apply to the 4 days of leave on request. This entitlement is valid only for a given calendar year and if the employee does not use it, it does not transfer to the next year. In practice, this means that if in a given year the employee did not take leave on demand or took less than 4 days of such leave, the leave on demand will not be transferred to the next year.
Rules for agreeing a vacation date
The rule is that the date of leave should be agreed with the employee. Doubts in this respect are related to the possibility of the employer issuing a unilateral, binding order to use outstanding leave within the period provided for in the Labor Code. Some judgments indicate that when granting an employee overdue annual leave until September 30, an employer is not obliged to obtain the employee’s consent, but there is also a different position in the literature. Therefore, it is advisable for the employer, in consultation with the employee, to set a date for using the outstanding leave.
Cash equivalent for unused leave
Annual leave cannot be cashed in. As a rule, days off should be used in the form provided for by law as time for rest and regeneration. An exception to this is a situation where the employee fails to use his or her vacation days before the end of the employment relationship. Only then is he entitled to holiday pay for these days.
What if the employer does not grant overdue leave by September 30?
If an employee does not start his or her overdue leave on September 30 at the latest, he or she will still be able to use it until it expires. The leave expires after 3 years from the date on which it becomes due. This period begins to run:
- at the end of the calendar year for which the leave is due or
- if the leave was postponed to this year for reasons attributable to the employee or employer – no later than the end of September of the following year.
- the claim for annual leave for 2022 will expire on September 30, 2026.
If the employer fails to grant the employee the holiday leave he is entitled to or unjustifiably reduces its amount, he commits an offense punishable by
fine from PLN 1,000 to PLN 30,000.
– art. 163, art. 164, art. 165, art. 166, art. 167, art. 168, art. 282 § 1 point 2, art. 291 § 1 of the Act of 26/06/1974 – Labor Code (Journal of Laws of 2020, item 1320),
– art. 15gc of the Act of March 2, 2020 on special solutions related to the prevention, counteracting and combating of COVID-19, other infectious diseases and crisis situations caused by them (Journal of Laws of 2020, item 1842).
– judgment of the Supreme Court of April 11, 2001, I PKN 367/00,
– judgment of the Supreme Court of September 2, 2003, I PK 403/02,
– judgment of the Supreme Court of January 24, 2005, I PK 124/05.
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