As a general rule, an employee (other than one in their first employment) acquires the right to their full annual leave entitlement for the entire year in advance — from 1 January they already have access to all their leave days for that year. What happens, however, when they change employment?
Proportionate Apportionment
Article 155(1) of the Labour Code (Kodeks pracy) provides detailed regulation of the situation described in the heading of this article. It follows from that provision that, where an employee changes employment during the course of the year, annual leave is apportioned proportionately between employers, namely:
- with the previous employer, the employee may (and should) take the portion of leave corresponding to the period of employment with that employer in the given year up to the termination of the employment relationship;
- with the new employer, the remainder of the leave entitlement is available to be taken.
By way of example — employee X is entitled to 20 days of annual leave in a given year. They remain employed with their previous employer until the end of March and commence employment with a new employer on 1 April. This means that with their previous employer, employee X may take 5 days of annual leave, and with their new employer — the remaining 15 days.
This is of particular importance in the context of taking annual leave during the notice period with the previous employer, and equally in relation to any claim for a payment in lieu of untaken leave (ekwiwalent za niewykorzystany urlop).
There are, however, a number of exceptions to the rule described above.
New Employer Engaged for a Short Period
The first exception concerns the situation where employment with the new employer is to last for less than the remainder of the calendar year. In that case, the leave entitlement with the new employer is proportionate to the period of employment in the given year.
By way of example — employee X from the previous section commences employment with a new employer on 1 April, but has entered into a fixed-term contract running until 30 September. With the first employer, as before, they will be entitled to 5 days of leave, and with the new employer — 10 days of leave.
Leave Already Taken with the Previous Employer
It is self-evident that it is not always possible to foresee the termination of employment well in advance. It is therefore possible that an employee may take a greater number of leave days than the proportion corresponding to their period of employment with the previous employer. In such a situation, the leave entitlement available with the new employer is reduced accordingly. The underlying principle, however, is to ensure that the employee always has available to them the total number of leave days to which they are entitled under the applicable provisions.
By way of example — employee X, as described above, concluded their employment at the end of March, but had already taken 15 days of leave in February. Although they will be working with their new employer from April, in that year they will be able to take only the remaining 5 days of leave with that employer.