Can I require my employee to shorten holiday?

shorten holiday

Shorten holiday?

The date of the employee’s holiday is usually determined much earlier. 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 shorten their holiday and return to work? Can I order them?

Polish Labour Code protects the employee’s right to holiday

You cannot order to shorten holiday once it has started, unless there are exceptional circumstances, which could not be foreseen on the starting day of the holiday. These exceptional circumstances must be supported by the employer’s particular needs which could not be satisfied 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 holiday the employee is protected from termination.

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

The employer should reimburse the employee for costs of breaking holiday

When the employee shortens hir or her holiday 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 prove the amount of such costs in order to be able to claim them from the employer.

Polish labour law

polish labour law

Have you ever had to do with Polish labour law? Probably not but since there are many US and UK based companies opening their branch offices or operating in Poland there is a chance you may soon have to deal with it, either as an employer representative or an employee.

Polish labour code

If that is the case, the first and foremost piece of legislation that you need to look into is the Polish labour code.

The Polish labour code will tell you:

  • how to conclude an employment contract and how to terminate it,
  • how to manage wages,
  • what are employee and employer statutory duties,
  • how you can prevent employee competitive activity via non compete agreements,
  • when the employee is liable for damage or loss caused to you,
  • what you need to know about work time, leaves and parents’ rights,
  • whether you can employ a minor,
  • what safe and healthy measures you need to take in your workplace,
  • how to go about union agreements (barganing agreements),
  • when you may be charged with an offence against an employee.

Collective dismissals and trade unions

For more detailed issues you may need to look into specific pieces of legislation. For example, if you require information on mass layoffs, you will have to get familiar with the Collective Dismissals Act. If you are concerned with trade unions and their rights, the right act for you would the Trade Unions Act. There are many more. Some professions have their own acts to govern their particular emloyment contracts and rights.

Transfer of undertakings: procedural aspects

Employers participating in the transfer of undertakings must meet certain procedural requirements to make sure the the transfer complies with the labour legislation and measures for protection of employees.

First, they must notify their trade unions or – where there are no trade unions present – their employees of the transfer and related matters (such as reasons for the transfer and its predicted effects as well as plans concerning employment or work and pay conditions). Notification must be made in writing at least 30 days before the planned date of the transfer. However, failure to provide notification does not render the transfer null and void.

Second, the employer may not terminate the employee solely on the grounds of the transfer. Such termination will be considered unjustified and trigger employee remedies I discussed in some of the blog entries before. However, there may be other reasons to justify termination, e.g. the need to restructure or reduce the employer’s workforce, or an employee’s poor performance. The important thing is that any such reason must be genuine and concrete.

Third, employers partaking in the transfer of undertakings must bear in mind that in connection with the transfer an employee is entitled to make use of a “summary” termination procedure, that is, an employee may terminate the employment contract on 7 days’ notice within 2 months of transfer, without giving reasons. An employment contract so terminated will be understood to have been terminated by the employer with the applicable period of notice. Since the procedure of transfer is aimed at protecting the employee in the first place, there is no equivalent right for the employer and no “summary” termination procedure is available for them. As mentioned above, even regular dismissals solely on the grounds of the transfer are limited.

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Transfer of undertakings: the concept of transfer

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Polish labour law does not give a definition of the transfer of undertakings. However, it is traditionally understood as any organizational change which leads to transfer of ownership and includes mergers, takeovers or divisions of undertakings. Legal titles for such transfers are various: sale, lease, inheritance or other.

In the recent years, mostly under the influence of the Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, and the related EJC rulings, the understanding of the transfer of undertakings has changed, or rather – broadened to include a number of further sets of circumstances. In short, the transfer of undertakings may be considered to occur:

  • on takeover of tasks, not necessarily assets;
  • on subcontracting certain tasks to a third party contractor (in bilateral relationships);
  • on takeover of services, previously outsourced to one party, by another service provider, especially if such takeover of services was accompanied by takeover of assets related to these services (in tripartite relationships).

Obviously, not all situations described above will automatically trigger the transfer of undertakings. There are certain additional aspects which must be taken into consideration, such as:

  • the kind of day-to-day activity of the parties involved;
  • whether the takeover of tasks/services was accompanied by takeover of assets;
  • whether the tasks/services taken over constitute the major or auxiliary part of the business of the party who launched the takeover.

Because of this it is becoming increasingly difficult to state conclusively whether business transactions are caught by the transfer of undertakings. Needless to say, this leads to a lot of legal uncertainty, both on the part of the employee and the employer. Depending on particular circumstances, the party to whom tasks or services have been subcontracted may not even be aware that the transfer of undertakings has taken place, not mentioning the related employees. From this perspective, even though the broadening concept of the transfer of undertakings was originally and is still meant to protect the employees, it may oftentimes backfire rather than help.

What is the rule of equal treatment?

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Polish labour legislation provides for the obligation to treat all employees equally with respect to conclusion and termination of employment, employment conditions, promotion and access to professional training, irrespective of:

  • sex;
  • age;
  • disability;
  • race;
  • religion;
  • nationality;
  • political views;
  • trade union membership;
  • ethnic background;
  • religious creed;
  • sexual orientation;
  • full-time or part-time employment;
  • employment for indefinite or fixed time.

In short, this is a general anti-discrimination clause, which is as a result of adjusting Polish labour legislation to the EU standards before the EU accession in 2004.

If the employer differentiates situations of particular employees based on one or several reasons listed above, then they will be considered to violate the anti-discrimination clause, unless they are in a position to demonstrate that such differentiation is justified by genuine occupation requirements. Examples of such genuine occupation requirements would include:

  • experience and length of employment affecting the conditions of employment, salary or promotion;
  • grounds related to parenthood protection or disability reasons;
  • changes in working time arrangements if justified by reasons unrelated to employees.

Remedies available to discriminated employees are not overwhelming: they may claim damages no lower than minimal wages (there is no upper limit) and they are guaranteed protection from dismissal once the claim has been brought. The claim may also be made after the employment relationship has come to an end, no matter whose initiative that was. Damages must be effective, proportionate and preventive.