The date of the employee’s vacation leave is usually determined much earlier, so that the employee knows when they can expect time off and the employer knows when they need to arrange for a replacement.

The starting day has come, the employee is absent from work, but I need him or her to help in an important business.

Can I as an employer require the employee to break their leave and return to work? Can I order them to do so?

Polish Labour Code protects the employee’s right to vacation leave.

Once the leave has been started, it may be recalled only in exceptional circumstances, which could not be foreseen on the starting day of the vacation leave. Importantly, these exceptional circumstances must be supported by the employer’s particular needs which could not be accommodated without the employee’s presence.

For example, the employer may not require the employee to return to work only for the purpose of terminating the employment contract. During vacation leave the employee is protected from termination.

Legally, the employer’s request in an employment law order, which the employee should obey under pain of applicable sanctions, including immediate termination of the employment contract – provided that the employer had the right to require the employee to return to work.

When the employee breaks their vacation leave at the employer’s request, the employer should reimburse the employee for the related costs, e.g. costs of earlier return. However, it is for the employee to demonstrate the amount of such costs in order to be able to claim them from the employer.

Image courtesy of FreeDigitalPhotos.net

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A noteworthy judgment by the European Court of Justice on child feeding leave inspired me to write a few words on the same issue as it is shaped under Polish labour law.

But from the beginning…

In the judgment dated September 30, 2010, case no. C-104/09 Pedro Manuel Roca Álvarez v. Sesa Start España ETT SA, the ECJ held that it is discriminatory – on the grounds of sex by reference in particular to marital or family life – for the national law to provide that

female workers who are mothers and whose status is that of an employed person are entitled, in various ways, to take leave during the first nine months following the child’s birth, whereas male workers who are fathers with that same status are not entitled to the same leave unless the child’s mother is also an employed person.

The national law at issue was Article 37(4) of the Spanish Workers’ Statute, which provided for child feeding leave (breastfeeding or otherwise) to employed mothers without exception, whilst employed fathers were entitled to that leave only if the child’s mother was also employed. As a result, for employed fathers the fact of being a parent was not sufficient to earn the leave entitlement, whereas it was for employed mothers. The ECJ found that

the positions of a male and a female worker, father and mother of a young child, are comparable with regard to their possible need to reduce their daily working time in order to look after their child

and that therefore

the measure at issue in the main proceedings establishes a difference on grounds of sex

which could not be justified by protecting the biological condition of the woman following pregnancy or the protection of the special relationship between a mother and her child since the feeding and devoting time to the child can be carried out just as well by the father as by the mother.

What does Polish labour law say on child feeding leave?

Polish labour law provides for explicit breastfeeding leave, which means that a non-breastfeeding mother will not be entitled to such leave, not to mention the father.

The amount of leave depends on the daily working hours of a breastfeeding mother:

  • if it’s shorter than 4 hours, no time off is available;
  • if it’s between 4 and 6 hours, one half-hour break when 1 child is being breastfed, or one 45-minute break when more than 1 child is being breastfed;
  • if it’s longer than 6 hours, two half-hour breaks when 1 child is being breastfed, or two 45-minute breaks when more than 1 child is being breastfed.

The mother may ask for accumulated time off during her working day or finish work respectively earlier if she wishes.

Breastfeeding breaks count as working time for which salary is due.

There is no limit on the child’s age and the mother may use the leave as long as the child is being breastfed.

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