Is it possible to work during annual leave?

Annual leave consists in the employee refraining from performing work. However, is this an absolute prohibition or does it allow for some exceptions? Is it possible to work during annual leave? Let's see what the Labor Code says about it.

The right to holiday leave and its duration

Pursuant to Art. 14 of the Labor Code, an employee has the right to rest, which is provided for in the provisions on working time, non-working days and holidays. The provisions of Art. 152 et seq. kp.

Pursuant to these regulations, an employee is entitled to an annual, uninterrupted, paid leave (under the conditions specified in the Labor Code, the leave may be divided into parts).

Annual leave is a designated leave - it should be used for leisure, thanks to which the employee can regenerate his strength. Of course, the employer is not entitled to control whether the holiday is actually used by the employee in accordance with its purpose, but it is to enable the employee to take it.

A full-time employee's annual leave is as follows:

• 20 days - if the employee has been employed for less than 10 years,
• 26 days - if the employee has been employed for at least 10 years.

For a part-time employee, the amount of leave is determined in proportion to the length of the employee's working time, based on the amount of leave of a full-time employee; an incomplete day of leave is rounded up to a full day (Article 154 of the Labor Code).

As indicated by the Court of Appeal in Katowice in its judgment of December 2, 2008 (III AUa 449/08), the Labor Code sets the basic dimension of annual leave, which may be better regulated, for example in an employment contract or collective labor agreements, taking into account specific conditions prevailing in a given position or specific to a given profession, without, however, depriving such additional leave of the character of a holiday leave, which is primarily intended to rest and regenerate the strength of a specific employee.

The periods of previous employment, irrespective of breaks and the manner of termination of the employment relationship, as well as periods of study, specified in detail in Art. 155 of the Labor Code In the case of simultaneous employment in two or more employment relationships, the period of the previous unfinished employment in the part prior to entering into the second or subsequent employment relationship is also included.

The employee may not waive the right to holiday leave (Art. 152 § 2 of the Labor Code). This means that even his possible consent not to grant him or her leave or to grant it in a smaller amount than that provided for in the code does not have any legal effects and the employer is obliged to grant the leave in full.

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Cancellation of leave

There are cases when there is a need for an urgent return to work of an employee who is on vacation. Such a possibility is provided for in Art. 167 of the Labor Code, which states that the employer may recall an employee from leave, but only when his presence at the workplace is required by circumstances unforeseen at the time the leave begins.

Example 1.

Worker A started a two-week vacation. After three days of his absence from work, employee B fell ill, carrying out an assignment for the employer's contractor as part of his work duties, which must be completed within a specified period. Among people employed in the workplace, only employee A has the qualifications to replace employee B during his absence. In order to meet the deadline for the execution of the order agreed with the contractor, it is necessary for employee A to immediately start its execution. In such circumstances, the employer, recalling employee A, will not be exposed to the allegation of violation of Art. 167 of the Labor Code

Pursuant to the judgment of the Supreme Court - Chamber of Labor, Social Security and Public Affairs of March 8, 2017 (II PK 26/16), effective dismissal of an employee from vacation leave requires the employer to submit an unequivocal declaration of will in a way that allows the employee to become familiar with its content (Art. 167 § 1 in connection with Art. 300 of the Code of Civil Procedure and Art. 61 of the Civil Code). This requirement is not met by the employer sending a message to the employee's private e-mail box, especially when such a means of communication has not previously been used for communication between the parties to the employment relationship. An employee who is on vacation leave is not obliged to control e-mail. Since the employer, when recalling an employee from leave, thus restricts the constitutional right to rest, he should do so in an unambiguous declaration of will, which has effect at the time of submitting it to the employee in such a way that he can become familiar with its content.

An employer who intends to recall an employee from vacation must take into account that in the event of such an appeal, he will be obliged to cover the costs incurred by the employee in direct connection with the dismissal. Such costs include, in particular, the actual travel costs to and from the place of departure, as well as costs in proportion to the period of stay on the pre-paid trip not used due to cancellation. If the employee returns from the leave with the family, the expenses directly related to the dismissal should also include expenses for family members.

The need for the employer to bear the costs related to the dismissal of an employee from the already existing leave may induce some employers not to recall the employee from the leave, and at the same time expect him to perform certain activities related to his employee duties during the leave. The question therefore is whether this is legally permissible.

Work during annual leave?

The Supreme Court clearly stated in the above-mentioned judgment II PK 26/16 that an employee who takes a vacation leave is temporarily released from the obligation to perform work and remains outside the sphere of employee subordination. In addition, taking into account the achievement of the objective of the type of leave in question, which is rest, it should be considered that both being on leave and performing work under a given employment relationship are incompatible. In other words, the duration of work by an employee cannot be also the time of a vacation leave for the same employer.

The employer has no right to expect the employee to perform work during the holiday leave without revoking him from this leave, while maintaining the requirements set out in Art. 167 of the Labor Code On the other hand, if an employee shows up at work during his annual leave, the employer should not allow him to work.

Working while on holiday and many employers

If the same person is employed by two or more employers, then the duration of work and the time of annual leave are accounted for separately under each employment relationship. This means that the use of vacation leave with one employer does not exclude working during this leave with the other employer.

Example 2.

The employee is employed under separate employment relationships with employer A for 0.75 full-time jobs and with employer B for 0.25 full-time jobs. From 5 to 18 July, he took a leave from employer A, and he worked for employer B. Pursuant to the provisions of the Labor Code, it was permissible, as we did not have to deal with a situation in which the employee would perform work during the holiday leave separately for any of the employers (A and B).

Summing up, the answer to the question of whether an employee may, under the same employment relationship, take leave and perform work (official duties) at the same time, the answer is clearly negative.