During the pandemic employers are facing challenges that are related to overdue holiday leave entitlements and result from such factors as long-term work from home and reduced employee mobility forced by the prevailing circumstances.
In line with the general rules for granting holiday leave, time off should be granted by the employer during the calendar year in which the employee accrues such entitlement. During the pandemic, employees have increasingly accumulated holiday entitlements. It is important to remember that failure to grant leave in a given calendar year, regardless of the possible liability of the employer in this respect, does not result in the employee losing the entitlement to unused leave. On the contrary, such leave becomes the so-called overdue annual leave.
According to the general principles of employment law, the employer must grant overdue holiday leave by September 30th of the following calendar year at the latest. This means that the employee should start using the overdue leave by that date.
In practice, it gives rise to doubts whether the employer’s obligation to grant leave is connected with the employee’s duty to use such leave within the time indicated by the employer. Supreme Court judgments and the recent statements of the State Labour Inspectorate present a view that the employer may require employees to take overdue leave without their consent. In our opinion, this view is debatable, as the Labour Code does not provide for the employer’s right to require compulsory leave in normal (non-pandemic) circumstances. The legal provisions clearly provide for exceptional situations when the employer may ask the employee to take compulsory leave, mainly during the notice period. That being said, generally it is the employee that decides on the dates of holiday leave, as permitted by organisational considerations.
In this context, provisions of the Covid-19 pandemic legislation are of particular significance. In line with these special regulations, during the pandemic the employer may grant the employee, within the time limit indicated by the employer and without the employee’s consent, a holiday leave not taken by the employee in the previous calendar years. This right applies to the leave of up to 30 days and the employee has to take such leave. The introduction of this special regulation proves that, in fact, under the general provisions of the Labour Code, the employer is not entitled to require a compulsory leave, even if it is overdue.
The employer’s right to require compulsory leave during the pandemic does not expire on September 30th of the following calendar year. This is supported by the purpose of the regulation and its wording, which covers not only overdue leave from the previous calendar year, but also all overdue leave periods, including those from earlier calendar years.
On the other hand, the potential liability of the employer for infringement of the rights of employees in a situation where overdue leave is not granted by September 30th of the following calendar year remains an open issue. The Covid-19 regulations do not expressly provide for the extension of this time limit in relation to the provisions on the employer’s liability for offenses described in the Labour Code.