How do you effectively recall an employee on holiday?

The holiday season is in full swing, but what if, in addition to the scorching sun on the beach, it also "burns" in the company?

When can an employer cancel an employee's holiday?

Cancellation of holidays and working during holidays

Every employee is entitled to an uninterrupted leave of absence as defined by the Labour Code (20 or 26 days per calendar year respectively). The leave may be divided into parts. However, in this case, at least one part of the holiday should last for no less than 14 consecutive calendar days.

The right to uninterrupted annual leave is an extremely important constitutional entitlement of every employee to rest. Research shows that a well-rested employee is healthier (both mentally and physically) and more productive. However, what if situations arise during an employee's holiday that their presence at work becomes necessary? Can an employer recall an employee from leave? What are the consequences of such a cancellation?

Cancellation of leave

Pursuant to Article 167 of the Labour Code, an employer may recall an employee from leave at any time. It may do so only if the employee's presence in the company is required by circumstances unforeseen at the time the leave starts (e.g. an unannounced inspection, illness of the replacement person). If the employer is aware that such circumstances may arise during the period of the employee's leave and, nevertheless, has granted the employee that leave, it will be unlawful to remove the employee from leave.

An employer, when cancelling an employee's leave, should do so in an unambiguous statement of intent that has effect when it is communicated to the employee in such a way that he or she may become aware of its contents. This requirement is not fulfilled by the employer sending a message to the employee's private email inbox, especially when such a means of communication has not been used before. An employee on leave, as a general rule, is not obliged to maintain regular daily contact with the employer during that period. An employee on annual leave is also not obliged to control e-mail.

Can an employer, therefore, oblige an employee to provide details enabling the employer to contact the employee during his or her leave? The position on this issue is ambiguous. Personally, I agree with the opinion expressed by A. Kosut (A. Kosut[in:] Labour Code. Commentary. Volume II. Art. 114-304(5), 5th ed., ed. K. W. Baran, Warsaw 2020, art. 167), who accepted that the obligation to provide contact data "may concern, at the same time, not every, rank-and-file employee, but specialists with high skills who cannot, if necessary, be replaced by other employees."

An employee who is ordered to report to work should interrupt his/her leave of absence without undue delay and report to work immediately. Failure to report to work despite being recalled from leave may be considered as a breach of the employee's basic duties and constitute grounds for termination without notice through the fault of the employee.

As a result of the employee's recall from leave, the employer is obliged to pay all the employee's costs directly arising from this situation (including, but not limited to, return travel costs, accommodation costs incurred by the employee in advance).

Work during holidays

It should be emphasised that performing work duties of one's own free will during a leave of absence, i.e. without the instruction or approval of a superior and without a clear and objective necessity - does not annihilate the leave of absence granted by the employer.

It is pointed out that the performance by an employee who manages the workplace on behalf of the employer (Article 128 § 2(2) of the Labour Code) of his own and unforced will of the employee's duties during a leave of absence, i.e. without the order or approval of the superior and without clear and objective necessity, is not the performance of work during a leave of absence

However, an employer's obligation on an employee to remain on standby for work or forcing the employee to perform work during a leave of absence (verbal, non-verbal - through psychological pressure or caused by a faulty work organisation making it necessary to perform work duties during this period) negates the essence of a leave of absence intended as a time of undisturbed rest for the employee.

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