A crisis at work while your employee is on holiday? Find out how to legally recall an employee from their holiday

Holidays are a time to catch your breath and take a break from your daily responsibilities, as well as an employee’s right to undisturbed rest, guaranteed by the Labour Code. But what if a sudden crisis arises in the company just when an employee is on holiday? Can the employer interrupt the holiday and call the employee back to work? What conditions must be met to do so in accordance with the law?

When is it possible to cancel leave?

As a rule, an employee cannot waive their right to leave, and an employer does not have the freedom to cancel it. Article 167 of the Labour Code provides for the possibility of recalling an employee from leave, but this is an exceptional measure that can only be applied if:

• unforeseen circumstances arise that could not have been foreseen at the time the leave began,
• the employee’s presence is necessary to ensure the smooth running of the business,
• the employee’s absence could cause disruption to the business.

Examples of such situations include serious breakdowns at the plant, an official inspection or the need for the employee to participate in urgent activities.

Can an employee refuse to return to work?

Cancelling leave is an official order, and refusal to comply may be considered a serious breach of employee obligations. In extreme cases, this may constitute grounds for termination of the employment contract without notice.

However, it is worth remembering that the employer should take into account the time needed for the employee to return and inform them in advance of the need to report to work.

In what form can an employee be recalled from leave?

The regulations do not specify the form of recall, but it must be effective – the employee must be able to familiarise themselves with its content. This can be done by telephone, text message, instant messenger or email – it is important to ensure that the information reaches the employee. Similarly, the Supreme Court pointed this out in its judgment of 8 March 2017, emphasising that effective revocation requires an unambiguous statement of intent by the employer in a manner that allows the employee to familiarise themselves with its content.

Note: sending information to an employee’s private email address, if it has not been used for business purposes before, may be considered ineffective! An employee on holiday is not obliged to check their private email account every day.

What about unused holiday entitlement?

Interrupting a holiday does not deprive an employee of their right to unused days. The remaining part of the holiday should be taken at a later date agreed upon by both parties. If the holiday is not taken in a given calendar year, it becomes outstanding holiday entitlement, which must be taken by the end of September of the following year.

Who bears the costs of recalling an employee from leave?

When recalling an employee from leave, the employer is obliged to cover the costs associated with the return – this includes expenses that the employee and their family would not have incurred if the recall had not taken place, such as:

• additional return travel costs (airline tickets, train tickets),
• costs of unused hotel stays or purchased trips, if they are non-refundable,
• costs of returning family members when the employee’s return prevents the continuation of a joint holiday.

The employee should document the costs incurred with receipts or other evidence (e.g. tickets), and the employer should establish clear rules for the reimbursement of such expenses by introducing appropriate procedures or clauses in internal work regulations or employment contracts. If, after returning, the employer does not reimburse the costs incurred, the employee has the right to pursue their claims before a labour court.

It is also worth remembering that the employer is not responsible for covering indirect costs related to the holiday, such as the purchase of sports equipment.

Summary

Recalling an employee from leave is an exceptional measure, used only in urgent and unforeseen situations. An employer has the legal right to recall an employee from leave, but it is important to exercise caution so as not to abuse this right. Abuse of the right to recall may have legal consequences. The employer should always carefully analyse the situation and only use this solution when it is really necessary.

attorney at law Marta Strzecha-Bociąga

Legal assistant Julia Sośniak