The right to rest and the possibility for recalling an employee from leave
The holiday season can cause considerable organisational challenges for employers. On the one hand, they should provide employees with time to rest, while on the other, they must ensure there is no interruption of operations, such as key business processes and customer service.
Despite any earlier arrangements, some situations may require the recall of an employee from holiday leave. When exactly does an employer have this option and what should the employer remember, to ensure that the interruption to the employee’s rest complies with the law?
| Requirements for a recall from leave Article 167 par. 1 of the Labour Code stipulates that an employer may only recall an employee from leave if:
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In the realities of remote and hybrid working, “presence at the workplace” may be understood as meaning the need to render work, including remotely. While, a cancellation of leave may be justified by, for example, an urgent need to remedy a breakdown of equipment or a sudden change in the date of a court hearing in a case in which the employee is representing the employer. These are primarily situations in which the employee who is on leave cannot be replaced by any other person (e.g. due to possessing unique qualifications).
| Example: one specialist is on leave and the other in hospital An employer employs two specialists who are responsible for monitoring the proper operation of a manufacturing line and repairing any malfunctions. One of them is taking leave. Meanwhile, the other has an accident at work, which leads to that person’s hospitalisation. At the same time, a serious breakdown occurs on the manufacturing line that prevents the plant from operating. In this situation the employer may recall the first specialist from leave. |
Significantly, it is entirely up to the employer to assess whether a given situation gives rise to a need to interrupt an employee's resting time, and an employee who has been properly recalled from leave must obey the employer’s decision, even if not agreeing with it. Indeed, the cancellation of leave constitutes an official instruction of the employer (Article 100 par. 1 of the Labour Code), and failure to comply with it may constitute a breach of the employee’s obligations and therefore have consequences for the employee, as set out in the regulations (a disciplinary penalty, termination with notice or, in certain situations, termination of the employment without notice due to a fault of the employee). At the same time, the circumstances justifying the leave’s cancellation must be of a type that could not have been foreseen when the employee started the leave (if they had been known when the leave started, the employer should have postponed the employee’s leave, based on Article 164 par. 2 of the Labour Code).
In contrast, in the view of the Supreme Court, a recall of an employee from leave for the sole purpose of handing that person a notice of termination should be regarded as being contrary to regulations (Supreme Court resolution of 9.02.1967, III PZP 22/66, OSNC 1967, no. 6, item 100).
How may leave be cancelled
To be effective, cancellation of an employee’s leave requires a statement of intent from the employer. The statement must be unambiguous. In accordance with case law, an employee may not be required to guess the employer's intention regarding recalling that person from leave based on vague suggestions, e.g. informing the employee on the penultimate day of leave that the employee is required at work (Supreme Court judgment of 8.03.2017, II PK 26/16, OSNP 2018, no. 4, item 43). Moreover, the statement cancelling the leave must be communicated in way that enables the employee to learn its content (Article 167 par. 1 in conjunction with Article 300 of the Labour Code and Article 61 of the Civil Code).
In practice, this may take any form, e.g. by telephone, email or even text message, with the proviso that the employee must be able to become acquainted with the employer’s instruction (which should be issued in advance to enable the employee to report to work on the date set by the employer). This is important insofar as, during holiday leave, the employee is relieved of the obligation to work and remains temporarily outside subordination as an employee: the person is not required to check the work telephone or email.
For example, in accordance with the above Supreme Court judgment, the requirement that the employee be given the opportunity to learn the details of the statement cancelling the leave will not be satisfied by the employer sending a message to the employee’s private email account, especially if the parties have not previously used this means of mutual communication.
Cases do arise in which it may be clearly difficult or even impossible in practice to recall an employee from leave (e.g. if the employee’s phone has been switched off and the employer has no other means of effectively contacting the employee).
| Example: statement cancelling leave by telephone An employee is holidaying in the mountains. He has taken his work phone with him and leaves it in his hotel room. Upon returning from a trail walk, the employee notices a missed call from his employer and returns it. The employer informs the employee of a decision to cancel his leave. The cancellation of the leave will be effective. |
Reimbursement of costs
It is worth remembering that cancelling an employee’s leave may involve certain financial risks for the employer. This is because, under Article 167 par. 2 of the Labour Code, the employer is required to cover the costs which the employee incurs as a direct result of the recall from leave.
These are expenses that the employee would not have otherwise incurred had the employee not been recalled from leave, for example:
- non-refundable advance payments for hotel bookings that were not used due to the cancellation,
- the costs of the return journey from the holiday leave location to the place of work, if the employee would not have incurred these costs when returning from the leave at the originally agreed time.
The reimbursements also include costs associated with the employee’s family, if they have had to interrupt their holiday due to the cancellation.
| Example: the employer bears the costs of returning an employee and his family An employee is spending his holiday abroad with his two children. If he is recalled from his holiday, the employer will be required to cover the costs of returning to Poland not only the employee but also his children, who would be unable to continue with their holiday unaccompanied. |
In this respect, the employee should properly document the costs which he has incurred.
Nevertheless, the reimbursement of costs associated with a cancellation of an employee’s leave does not include the benefits that the employee could have received had the leave not been interrupted (e.g. remuneration for undertaking additional employment during the leave) or other costs not directly related to the cancellation of the leave (e.g. costs of purchasing specialised travel equipment).
If an employee has not incurred any costs and if the employer has properly recalled the employee from leave, then the employer will not be required to pay any associated compensation.
| Example: the employer does not bear costs if they were not borne by the employee An employee has started a holiday during which he intends to go on a cruise in the Mediterranean. Just before the departure, scheduled for the fifth day of the holiday, the employer cancels the employee’s holiday. The employee obtains information from the travel agency at which he purchased the cruise that he may reschedule it without charge for the following month. In this case, the employer will not have to reimburse any costs. |
Consequences of an unlawful recall from leave
A recall from leave is a specific legal measure that protects the interests of an employer, the application of which must also ensure that the rights of employees are respected. A disregard for its principles, apart from violating the good relations with the employee, may also result in more extensive financial liability for the employer, than in the above-described reimbursement of costs under the Labour Code. Indeed, if an employee is recalled from leave in violation of regulations, the employer may be liable under appropriately applied provisions of the Civil Code, thus, in particular, also for any benefits that the employee has lost (Article 361 par. 2 and Article 471 of the Civil Code in conjunction with Article 300 of the Labour Code). This is why, if an employee needs to be recalled from leave, it is so important to know how to carry it out in accordance with regulations.
Natalia Bigdowska
