Can employer send his employee to a compulsory leave?
August 7, 2018
Compulsory leave
One of the basic employee’s rights is a right to have an annual, uninterrupted and paid holiday leave. The employer has an obligation to grant his employee a leave in a calendar year during which he obtained a right to this leave or up to 30 September of the consecutive year at the latest.
Pursuant to art. 163 of the Act of 26 June 1974 Labor Code, dates of leaves shall be established in advance. The leave schedule serves for this purpose, in which leaves for current year, unused leaves from previous years and supplementary leaves are included. A leave can be granted on employee’s request after agreeing it with him. Moreover, the employee has a right to obtain a leave on request not included in the leave schedule.
Leaves should be granted to employees in accordance with a leave schedule developed annually by the employer. The schedule is arranged:
– in a way which will not disturb normal functioning of the workplace
– in agreement with employees who can have an influence on it through submission of leave applications.
It is up to the employer when will he grant a leave to his employee. He should consider employees’ leave applications, however he does not have to approve such applications, e.g. in a situation when there is a necessity of providing normal functioning of the facility. Holiday leave is the employee’s right – not an obligation. Therefore the employer can not only refuse to give his consent to grant a leave within a period chosen by the employee, but also to postpone it or interrupt a leave in progress.
Pursuant to the rule of annual holiday leave, the employer is obliged to grant such leave to his employee in the calendar year in which he obtained the right to this leave. Therefore, establishing leave dates without consulting the employee violates the rules of proper establishment of leaves. The employer who forces his employee to use the leave within a given period, violates employee’s rights and regulations concerning leaves and also executes labor time inappropriately. In such situation, the employee should notify the National Labor Inspectorate.
The only exception in which the employee has to use the leave within a period established by the employer is art. 167(1) of the Labor Code saying that the employee has the obligation of using the holiday leave within a period of notice if the employer granted him such a leave.
There are situations in which the employer is obliged to grant a leave within the period indicated by the employee:
– a female employee applies for a holiday leave directly after the maternity leave (this right also relates to the male employee who is a father using his parental leave) – art. 163 § 3 of the labor code.
– an employee wants to use the leave on demand (art. 167(2) of the labor code);
– a teenage employee goes to school – the employer shall grant him a leave during school holidays – (art. 205 § 2 of the labor code).
