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Human Resources

Dealing with unpaid leave

by Agnieszka Morawska, specialist, Mazars – HR Administration & Payroll Services Department
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The most common type of the unpaid leave in Poland is a leave granted on general terms (urlop bezpłatny udzielany na zasadach ogólnych).

It is often requested by the employee for personal reasons. Unpaid leave on general terms can be granted by the employer only upon a written request from the employee, which does not have to contain justification. Granting an employee with  unpaid leave on the employer’s initiative and without the employee's prior written request is ineffective in the eyes of the law. The parties should agree on the start date of the unpaid leave and the period it is granted for. The employee is entitled to apply for the leave in length they consider appropriate. However, the employer is not bound by the employee’s request and is entitled to ask for a shorter leave period, should that be the case. If the parties to the employment relationship agree that the employee will perform a part of their tasks during the unpaid leave, it means the unpaid leave has not been granted.

The period of the unpaid leave is treated as a period of time during which the employment relationship is suspended. The employee is exempted from their duties and does not have to be at the employer’s disposal. From the employer's side, there is no obligation to pay remuneration to the employee. During the period of unpaid leave, the employee benefits from special legal protection – the employer cannot terminate the employment contract. The unilateral amendment of work or pay conditions to the detriment of the employee by the employer is not admitted either.

In case of an unpaid leave granted for more than three months, the parties can agree on the possibility to recall the employee from leave for important reasons. The clause under which the employer is entitled to recall the employee from the unpaid leave should be included in the agreement between the parties to the employment contract. In fact, the decision on introducing such a clause is taken by the employer, as their decision to grant the leave of over three months can be made dependent on having told to the employee that he/she may be recalled.

The period of the unpaid leave is not included in the working period which forms the basis for any workers' and social rights, nor is it included in the job-seniority period which is the basis for determining the period of the employment contract termination or the amount of holiday leave due. Each month of the unpaid leave translates into a reduction by 1/12 of the holiday leave the employee is entitled to in a given calendar year. During the unpaid leave, the employee is not concerned by the system of social and health security, is not entitled to sickness benefit, and durations of the incapacity for work are not included in the working period.

The second most common type of the unpaid leave is the leave granted for carrying out work for another employer. It requires a written consent of the employee, and must stipulate a period in the agreement between the employers, concluded for this purpose.

The unpaid leave granted for carrying out work for another employer is optional. It is in general initiated by the employer and differs from classical unpaid leave by its procurement method and by the employee’s entitlements.

This type of the unpaid leave is used by the employers who encounter difficulties for different reasons (economic, organisational, technical) and who are temporarily unable to ensure the conditions for performing the work to the employees. Granting such an unpaid leave protects them from the necessity to terminate an employment relationship.

The unpaid leave granted for carrying out work for another employer is composed of three separate bilateral legal actions: an agreement concluded between the employers – the one transferring and the other receiving the employee – an individual agreement concluded between the employee and the transferring employer, finally an employment contract between the employee and the receiving employer.

The content of the first of these agreements consists of the employers' mutual obligations, the one receiving the employee for employment, the other transferring the employee and granting them the unpaid leave. While this agreement should define a period of the employee’s 'transfer', provisions do not require the employer to specify terms and conditions of the employment. It means that the employee cannot be guaranteed employment in similar conditions that were offered by the transferring employer.

The individual agreement between the employee and the employer granting the unpaid leave should mention the start date and duration of this leave, as well as the employer on whose account the work will be carried out. The employment contract is the basis for establishing an employment relationship between the transferred employee and the receiving employer. The notion of unpaid leave cannot be applicable in case of a civil law agreement as the legal basis of work assignment. Regarding the type of work to be carried out – the remuneration, working hours, period of employment – these are defined in the employment agreement between the employer-receiver and the employee.

The period of the unpaid leave is taken into account in the calculation of the unemployment period which, in turn, determines the workers’ rights to be granted by the current employer. This solution is applicable while calculating the employee benefits resulting from the workers’ rights that depend on job seniority from one workplace. The employment period in the employer-receiver's workplace is taken into account in the general job seniority only, on which depend the general worker’s rights.

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