Leave on demand (urlop na żądanie) is one of the most frequently misunderstood institutions of labour law in Poland. Many employees believe that they can decide for themselves to use these leave days, simply informing the employer that they will be absent. The legal reality is quite different - leave on demand also requires the employer's approval, and in certain situations the employer may refuse to grant it.
Misunderstanding this basic rule can have serious consequences for employees who decide not to turn up for work without their manager's consent. The consequences can range from a disciplinary penalty, through the absence being treated as unexcused and unpaid, to disciplinary dismissal.
Legal basis for leave on demand in the Labour Code
The rules on leave on demand are set out in detail in the Labour Code (Kodeks pracy) of 26 June 1974. The key provision is Article 167² (Article 167 with superscript 2), which obliges the employer to grant the employee leave at their request, but at the same time sets strict limits on this entitlement. A separate entitlement is force majeure leave.
The employer is obliged to grant, at the employee's request, no more than 4 days of leave in each calendar year. The leave must be granted on the date indicated by the employee, but this requires the employer's consent to such an absence
The provision also sets out the procedure for requesting leave on demand. The employee can make the request on the day the leave starts at the latest, which means much greater flexibility than ordinary annual leave, which usually requires planning and agreement in advance.
In its judgment of 15 November 2006 (case no. I PK 128/06), the Supreme Court (Sąd Najwyższy) clarified that a request for leave on demand should be submitted on the day the leave starts at the latest, but no later than the time the employee is scheduled to start work under their work schedule. This means that the employee cannot submit such a request during the working day or after working hours.
It is also important to understand that leave on demand is part of the employee's annual leave entitlement. It is not an additional entitlement, but a way of using part of the leave in a simplified procedure, with greater flexibility as to when the request is made.
Leave on demand is part of the employee's annual leave. The maximum number of days that can be used in this way is 4 days in each calendar year, regardless of the employee's total leave entitlement
Supreme Court case law on leave on demand
Supreme Court judgments provide key explanations of how the rules on leave on demand apply in practice. The most important question running through successive judgments is whether the employee can grant themselves leave on demand, or whether the employer's consent is always required.
Of fundamental importance is the Supreme Court judgment of 16 September 2008 (case no. II PK 26/08), in which the judges stated clearly that granting leave is a unilateral act of the employer. The effect of this act is to release the employee from the obligation to work and to excuse their absence from the company.
Granting annual leave, including leave on demand, is always a unilateral act of the employer. The employee cannot effectively grant themselves leave, and merely notifying the employer that the leave is starting, without obtaining consent, is not a basis for excusing the absence
This ruling has far-reaching practical consequences. It means that even in the case of leave on demand, whose name suggests a degree of automatic entitlement, it is the employer who grants the leave. As a rule, the employer must accept the request, but in special circumstances it may refuse, so the employee should not assume in advance that the request will be accepted.
Another important Supreme Court judgment was handed down on 28 October 2009 (case no. II PK 123/09). In it, the judges held that the view that an employer may not refuse to grant an employee leave on demand under any circumstances cannot be accepted. The judgment confirmed that there are situations justifying a refusal to grant such leave.
In the reasoning of this judgment of 28 October 2009, the Supreme Court explained the legal nature of leave on demand in detail. The judges stressed that this leave is part of annual leave and therefore has the same legal nature. All leave rules under the Labour Code apply to it, except for aspects expressly modified by law. A related question is when the employer can send an employee on leave.
All the general rules on annual leave in the Labour Code apply to leave on demand. The exceptions concern only matters expressly set out in the law, such as the option of splitting the leave into parts or the obligation to grant it on the date indicated by the employee
The Supreme Court also stressed that a rational legislator would not have used the wording "the employer's obligation to grant leave" in the provision if it were meant to be pointless. This means that the term "granting leave" has the same legal meaning in all provisions on the use of annual leave.
Situations justifying refusal of leave on demand
Although the law obliges the employer to grant leave on demand, this obligation is not absolute. The employer may exceptionally refuse the employee's request – according to the Supreme Court, because of special circumstances in which the employer's exceptional interest, deserving protection, requires the employee to be present at work (judgment of 16 September 2008, II PK 26/08).
The first group of situations justifying refusal consists of cases where leave on the specific date would conflict with the need to ensure the normal course of work. This may concern situations where:
- The employee's absence would make it impossible to complete urgent tasks or projects
- The maximum number of employees from the department is already on leave at the same time
- The employee plays a key role in delivering an important project
- Their absence would require costly cover or reorganisation of work
The employer may exceptionally refuse leave on demand where the employee's absence on the specific date would conflict with the need to ensure the normal course of work in the business. This applies in particular where the employee plays a key role or cannot be replaced
The second category consists of cases where the employee's absence would threaten an exceptional interest of the business. This may include situations such as:
- Carrying out a stocktake or inspection in which the employee's participation is essential
- Delivering projects of strategic importance for the company
- Crisis situations requiring key employees to be present
- Deadlines related to tax settlements or reporting
It is important that the employer can justify the refusal objectively. It cannot result from arbitrary decisions or personal animosity, but must be based on the real organisational needs of the business.
In practice, a refusal of leave on demand may concern, for example:
- Periods of increased workload related to seasonal business
- Projects with fixed deadlines
- Situations where a significant part of the team is already on leave
- Cases where the employee is responsible for processes that cannot be interrupted
- Financial settlement or reporting periods
A refusal of leave on demand must be objectively justified by the organisational needs of the business. The employer may not make arbitrary decisions based on personal preferences or animosity towards the employee
Consequences of not turning up for work without the employer's consent
When an employee decides not to turn up for work after requesting leave on demand, but without obtaining the employer's consent, they expose themselves to a number of serious legal and professional consequences. The nature and severity of these consequences depend on the specific circumstances of the case and the employer's HR policy.
The basic consequence is that the employee's absence is treated as unexcused and unpaid. This means that the employee will not receive pay for the days on which they did not turn up for work, despite having made a leave request. The employer has the right to treat such an absence like any other unexcused absence. We can take over absence records and their settlement in the payroll – see our HR and payroll services.
| Type of consequence | Legal basis | Effect on the employee | Notes |
|---|---|---|---|
| Unexcused absence | Article 80 and Article 100 § 2 point 1 of the Labour Code | No pay for the period of absence | Mildest form |
| Disciplinary penalty | Article 108 of the Labour Code | Reprimand, formal reprimand, financial penalty | Entry in personnel file |
| Disciplinary dismissal | Article 52 § 1 point 1 of the Labour Code | Loss of job without notice | Most severe penalty |
The second group of consequences consists of disciplinary penalties (kary porządkowe) that the employer may impose under Article 108 of the Labour Code. These may be:
- Reprimand (upomnienie) - the mildest form of disciplinary penalty
- Formal reprimand (nagana) - a more serious penalty that affects the assessment of the employee
- Financial penalty - a deduction from pay: for each day of unexcused absence no higher than one day's pay, and in total no more than one tenth of the pay due after the deductions referred to in Article 87 § 1 points 1–3 (Article 108 § 3)
The employer may impose disciplinary penalties for the breaches listed in Article 108 of the Labour Code – including failure to comply with the established organisation and order of work and with the accepted method of excusing absences, and a financial penalty also for leaving work without excuse. A penalty may be imposed within 2 weeks of learning of the breach and after hearing the employee (Article 109)
The most severe consequence may be disciplinary dismissal under Article 52 § 1 point 1 of the Labour Code. The employer may apply this penalty if it considers the employee's failure to turn up a serious breach of basic employee obligations.
Disciplinary dismissal means:
- Immediate termination of the employment relationship
- No notice period
- No severance pay
- A negative effect on future employment
The decision on the type of penalty is up to the employer (the employee can challenge it before the labour court), which assesses the seriousness of the breach and the surrounding circumstances. It may take into account factors such as:
- The employee's attitude to date
- How often similar breaches occur
- The effect of the absence on the company's operations
- How the employee communicated
- Attempts to explain the situation
The employer has discretion in choosing the type of penalty for unexcused absence. It may apply a mild disciplinary penalty or decide on disciplinary dismissal if the breach is serious and culpable (intentional fault or gross negligence). Termination without notice must take place within one month of learning of the breach (Article 52 § 2 of the Labour Code)
A practical example of the legal consequences
Analysing a specific case best illustrates the potential consequences of an employee failing to turn up for work after requesting leave on demand without obtaining the employer's consent.
An employee working as a warehouse worker informed the employer by email that he could not come to work for unforeseen reasons. Without waiting for the employer's reply, he did not turn up at the company the next day. The next day the employer informed him that his leave request had been refused, stressing that his presence was essential because of the stocktake being carried out in the warehouse. The employee bore financial liability for the goods entrusted to him, and his absence made it impossible to carry out the stocktake properly.
In this situation, the employer took the following action:
- Treated the employee's absence as unexcused and unpaid
- Imposed a disciplinary penalty in the form of a formal reprimand
- Recorded the breach in the employee's personnel file
- Considered disciplinary dismissal
In this situation, the employer's actions were supported by the law and the facts, provided that the procedure under Articles 109–110 of the Labour Code was followed (hearing the employee, written notice of the penalty). The following elements were key:
- The employee's role, which required his presence during the stocktake
- Financial liability for the goods entrusted to him
- Failure to obtain consent before not turning up for work
- The effect of the absence on important processes in the company
For employees with financial liability for entrusted property, absence during key processes such as a stocktake may be treated as a particularly gross breach of duties. The employer then has strong grounds for applying severe penalties
If the employee had held a less responsible role, the employer might have shown more leniency. Nevertheless, the basic breach of not turning up for work without consent would remain and would justify appropriate consequences.
How the employee communicated with the employer also matters. A professional explanation of the situation and an attempt to obtain consent may lead the employer to treat the matter more leniently.
What to do in disputed situations
When a dispute arises between an employee and an employer over leave on demand, it is important to follow the proper procedure, which may affect the final outcome of the case.
From the employee's perspective, the key points are:
- Documenting all communication with the employer
- Keeping proof that the leave request was submitted
- Explaining the reasons for the absence in detail
- Trying to obtain the employer's consent before staying away
- Professional communication and readiness to explain
The employee should always document the process of requesting leave on demand and the communication with the employer. In the event of a dispute, proper documentation may be crucial for assessing the case
The employer, in turn, should:
- Respond to the employee's request without delay
- Justify any refusal to grant leave
- Document the decision-making process
- Apply proportionate consequences
- Follow the procedures set out in the work regulations (regulamin pracy)
Work regulations and collective agreements, which may contain additional arrangements on leave on demand, also play an important role. They may specify:
- How leave requests are submitted
- Deadlines for the employer's response
- Criteria for assessing requests
- Appeal procedures
- A list of penalties for breaches
If the employee disagrees with the employer's decision or the penalties imposed, they can:
- File an objection to a disciplinary penalty within 7 days of being notified of it (Article 112 § 1 of the Labour Code)
- Use the procedures set out in the work regulations
- Ask trade unions for help
- Take the case to the labour court (in the case of termination without notice – within 21 days, Article 264 § 2)
In a dispute over leave on demand, the employee can use various forms of legal protection, from internal appeal procedures to court proceedings. It is key to document all the circumstances of the case properly
