Taking of paid annual leave (PAL) is a sensitive issue for employers and employees that seems to become particularly relevant during the summer season. This article clarifies some mandatory rules on the PAL under the Labour Code (LC) and the Ordinance on Working Time, Rests and Leaves.
Minimum duration and required length of service
The minimum duration of the PAL is 20 working days.
When an employee first starts work, he/she may take PAL when he/she has at least 4 months of service.
Where the 4 months’ service has been acquired during the employee’s first year of employment, the employee shall be entitled to the full PAL for that year. Where part of that service has been acquired in one calendar year and part in the following calendar year, he/she shall be entitled to the PAL for the first calendar year in proportion to his/her service in that year and shall be entitled to the full GSP for the second year. A new 4-month period of service shall not be required for the second and subsequent calendar years, in which case the amount of the PAL for the respective calendar year shall be determined proportionally to the employee’s length of service for that enterprise.
Permission and taking of the PAL
At the beginning of each calendar year, but no later than January 31, the employer shall notify each employee in writing of the amount of the PAL he/she is entitled to take during the calendar year, including any suspended or untaken PAL from previous calendar years.
The employee is entitled to take a PAL after a written permission from the employer to the written request from the employee specifying the type, amount, calendar period for taking. The PAL shall be permitted to be taken by the employee all at once or in parts.
The taking of the PAL without written permission from the employer shall constitute a breach of work discipline for which the employee shall be disciplinarily liable.
The employer is also entitled to provide the employee with a PAL without the employee’s consent in the following cases:
- during a stay (stop working) of more than 5 working days;
- when all employees are on leave at the same time;
- when the employee has not, after having been invited by the employer, requested the PAL by the end of the calendar year for which it is due – until expiry of the prescription period (point 5 below).
The employee shall take the PAL until the end of the calendar year to which it relates. The employer shall be obliged to permit the employee’s PAL until the end of the relevant calendar year, unless the taking of the PAL is suspended under Art. 176 of the LC. In this case, the employee shall be granted not less than half of the PAL he/she is entitled to for the calendar year.
When the employer has not permitted the taking of the PAL till 6 months of the year following the year to which the PAL relates, the employee shall be entitled to determine the timing of taking of the PAL by notifying the employer in writing at least 14 days prior to the expiry of the prescription period (point 5 below).
Mothers of children up to 7 years of age shall take the PAL during the summer and, at their request, at other times of the year, except in the above cases of granting of the PAL without the consent of the employee.
When an employee with acquired right to PAL moves to another enterprise, he/she is entitled to take PAL for the calendar year of starting to work for the new enterprise proportionally to the length of service in the new enterprise. When the employment agreement is terminated after the taking of the full PAL for the same calendar year, the employee shall not be bound to pay compensation to the employer for the part of the PAL, for which he/she has not worked the respective time. In this case the employee shall not be entitled to take PAL till the end of the year, except longer PAL is provided for the new job.
Interruption of taking of the PAL
When, during the period of taking of the PAL, the employee is granted another type of paid or unpaid leave, the taking of the PAL shall be interrupted at the employee’s request and the remaining part shall be taken additionally as agreed between the employee and the employer.
An employee’s PAL may be interrupted by mutual consent of the parties expressed in writing.
Suspension of taking of the PAL (Art. 176 of the LC)
The taking of the PAL may be suspended for the next calendar year by:
- the employer – for important production reasons, in which case the employee shall be granted the taking of not less than half of the PAL he/she is entitled for the calendar year;
- the employee – when taking of another type of leave or at his/her request with the consent of the employer.
The employer shall grant or suspend in writing the taking of the PAL and notify the employee in a due time.
Where the PAL is suspended or not taken by the end of the calendar year to which it relates, the employer must ensure that it is taken in the following calendar year, but no later than 6 months from the end of the calendar year to which it relates.
Extinguishment by prescription of the right to take a PAL
When a PAL or a part of it has not been taken until the expiry of two years from the end of the year for which it relates, regardless of the reasons for this, the right to take is extinguished by prescription.
When a PAL is suspended under the terms and conditions of Art. 176 of the LC, the employee’s right to take it extinguishes by prescription after two years from the end of the year in which the reason for not taking the PAL ceased.
Payment during taking of a PAL
The employer shall pay the employee remuneration for the period of the PAL. The remuneration shall be calculated on the average daily gross remuneration earned with the same employer in the last calendar month preceding the leave during which month the employee has worked at least 10 working days.
Where there is no month in which the employee has worked at least 10 working days for the same employer, the remuneration shall be determined from the basic and supplementary remuneration of a fixed nature agreed in the employment agreement.
The remuneration for the period of taking of the PAL shall be paid at the request of the employee at least 3 days before the start of the taking and, where there is no request, under the terms and conditions of payment of the employment remuneration.
It shall be prohibited to compensate for the PAL with pecuniary compensations except on termination of the employment relation.
Compensation for untaken PAL upon termination of an employment agreement (Art. 224, para. 1 of the LC)
Upon termination of an employment agreement, the employee shall be entitled to a pecuniary compensation for untaken PAL if the right to it is not extinguished by prescription (point 5 above). This follows Art. 224 para. 1 of the LC, Decision No. 12 dated 11.11.2010 of the Constitutional Court and the case-law.
The reasons for not taking of the PAL have no legal importance.
The grounds for termination of the employment agreement are irrelevant.
The employee is also entitled to this compensation even if the employment agreement has been terminated before the acquisition of the minimum period of 4 months’ service, if he/she has completed at least 1 full month of service. In the case more than 1 month of service the last month shall be considered as full if the employee has worked at least half of the working days of the month.
The compensation shall be determined in compliance with point 6 above on the day of the termination of the employment agreement, in proportion to the time recognised as length of service in the enterprise up to the day of termination of the employment agreement.
In cases of a claim for payment of a compensation under Art. 224, para. 1 of the LC based on the allegation that the employee did not take the PAL, the objection that the PAL was taken can be established as a fact in the labour dispute. The burden of proving that the employee took the PAL during the period of absence from work lies with the employer and all types of evidence are admissible.
If the dismissal is subsequently cancelled as unlawful, the employee can no longer claim actual taking of the PAL, but neither can he/she return the compensation received for the untaken PAL. If there is a second dismissal during the period for which a compensation was paid no new compensation shall be due.
Employer’s duty for keeping of records
The employer shall keep records for the PAL and employees which records shall contain information on the taking, interruption and suspension of the taking of the PAL, as well as the remunerations and compensations paid in connection with the PAL.
