Unused holiday leave for 2020. By when can you use it?

September 30, 2021 is the final deadline for using any outstanding holiday entitlement for the year of 2020. Paid annual leave is guaranteed by the Labour Code. Employees are entitled to use between 20 and 26 days of holiday entitlement depending on their length of service.

Who is entitled to holiday leave?

The employer is obliged to grant annual leave during the ongoing calendar year in which the period of an employee has become entitled to it. Nevertheless, as it often happens such entitlement is not possible.

The only acceptable exceptions to this rule are:

postponement of given leave at the direct request of the employee,
reasons which are related to specific needs of the employer,
excused absence from work,
interruption of the leave in situations indicated in the rules and regulations or when the employee has been called upon to terminate the leave.

IMPORTANT NOTICE!

In the event, an employee does not use the entire holiday entitlement by the end of the calendar year, the said holiday becomes unused on January 1. The deadline for granting unused holiday will be set if the first day of the leave falls on 30 September (even if the end of the leave occurs after this date).

Leave of absence on request

Leave of absence on request is understood as a four-days entitlement leave of work duties and is not considered a part of the discussed regulation. This entitlement is for a calendar year only and if it is not used by an employee, it does not carry over to the following year. In other words, if the said employee does not request such leave in a given year, or takes less than 4 days of it, then the leave in question will not result in being carried over to the following year.

The rules for setting the holiday entitlement dates

The principle is that the date of a holiday leave should be agreed with an employee. Any doubts in this regard are related to the possibility of the employer issuing a unilateral and binding order to use outstanding leave within the period provided for in the Labour Code. Some rulings indicate that the employer when granting their employee outstanding annual leave until September30 is not obliged to obtain the employee’s consent. Nonetheless, various related publications propose a different perspective. Therefore, it is advisable for the employer to set a date for using the outstanding holiday entitlement leave in consultation with the employee in question.

Holiday entitlement and states of emergency or epidemics

During an epidemic or disease emergency, the employer has the right to grant the annual leave, which was not used by their employee in the previous calendar year, to the employee at the date indicated by the employer and without the necessity to obtain the said employee’s consent and regardless of their leave schedule. The amount of holiday entitlement granted in such manner is a maximum of 30 days.

Financial equivalent compensation for unused holiday

Holiday leave cannot be compensated in a form of financial equivalent. As a general rule, it is understood that holiday leaves must be understood as stated by law as time for rest and recuperation. An exception to this rule occurs only if an employee does not use their outstanding holiday entitlement before the employment relationship reaches its termination. Only then the holiday entitlement is due to be paid for these unused days.

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

In the event, an employee has not yet begun their unused holiday entitlement by September 30 at the latest, the employee is still able to use the said holiday entitlement until the statute of limitations is expired. The statute of limitations is a period of three years starting from the date on which the entitlement in question becomes due. The start of this period shall be:

at the end of the calendar year for which the leave is due or
if the leave is postponed to that year for reasons related to the employee or the employer, respectively – at the end of September of the following year at the latest.

IMPORTANT NOTICE!

In the event of the employer not granting the annual leave to which their employee is entitled or unreasonably reduces the amount of said holiday entitlement, the employer commits an offence punishable by

a fine of PLN 1,000 to PLN 30,000.

Legal basis:
– art. 163, art. 164, art. 165, art. 166, art. 167, art. 168, art. 282 § 1 item 2, art. 291 § 1 of the Act of 26 June 1974. – Labour Code (Journal of Laws of 2020, item 1320),
– Article 15gc of the Act of 2.03.2020 regarding special solutions related to preventing, counteracting and combating COVID-19, other infectious diseases and crisis situations caused by them (Journal of Laws of 2020, item 1842).

Judicial decision:
– judgment of the Supreme Court of 11 April 2001, I PKN 367/00,
– judgment of the Supreme Court of 2 September 2003, I PK 403/02,
– judgment of the Supreme Court of 24 January 2005, I PK 124/05.