The right to rest is one of the fundamental rights of Employees. The calculation of the days off due to an Employee and the proper calculation of overtime worked by an Employee can sometimes cause difficulties in situations that differ from the standard – i.e. in the case of young Employees and Employees who work part-time.
Right to Leave
Pursuant to Article 152 of the Polish Labour Code, every Employee is entitled to an annual, uninterrupted, paid leave of absence. An Employee is entitled to take leave in the amount of:
20 days when their work experience is less than 10 years;
26 days when their work experience is at least 10 years.
It should be noted here that the Polish Labour Code assumes that an Employee is granted leave on days that are their working days, where 1 day of leave means 8 hours of work. It is not possible to waive holiday leave, even in exchange for the payment of a financial equivalent.
At the same time, bear in mind that an Employee who joins a job for the first time, in the calendar year in which they start working, acquires the right to leave at the end of each month of work, at the rate of 1/12th of the leave to which they are entitled after having worked for a year. The Employee acquires the right to further holidays in each subsequent calendar year.
Length of leave for student Employees and part-timers
In the case of part-time Employees, the amount of leave shall be determined proportionally to the working hours, with the part-day rounded up to a full day.
The legislator also allowed for the possibility of counting the time of education as a length of service, assuming that to the period of work experience, counts for graduation from:
an elementary or other equivalent occupational school – the duration of education provided for in the curriculum, but not more than 3 years;
secondary technical school – curriculum duration of education, but not more than 5 years;
medium vocational school for graduates of basic (equivalent) vocational schools – 5 years;
general secondary school – 4 years;
post-secondary school – 6 years;
higher education – 8 years.
However, it should be taken into account that the above periods do not add up (e.g. completion of a general secondary school together with higher education, does not count as 12 years of work experience of the Employee). An analogous situation also applies to an Employee, undergoing education, while working – in this situation, the Employee is entitled to choose the more favourable option of calculating working time (e.g. counting 8 years of work experience, while working during a 3-year bachelor’s degree).
Calculation of overtime for part-time employees
The question of the correct way to calculate overtime for part-time employees, and consequently the calculation of remuneration for it, has been controversial for a long time, in view of the unclear provisions of the Labour Code on this issue. The judgment of the Court of Justice of the European Union (CJEU) of 19 October 2023 (reference C-660/20, Lufthansa CityLine case) brought significant changes in this matter.
The Court held that an Employer cannot pay overtime to part-time Employees only after they have realised the hours for full-time work. According to the judgment, part-time Employees should receive overtime allowance already after they have exceeded their working hours, i.e., for example, already after four hours, regardless of the provisions in their employment contract.
In practice, the rules for calculating overtime for part-timers have now become clearer. Employers should take into account the fact that the Employee works part-time and calculate overtime in proportion to the time actually worked in relation to the full-time position. In other words, overtime should be calculated in proportion to the number of hours worked in relation to the time that belongs to the full-time position. At the same time, it should be borne in mind that this ruling opens the way for Employees to make possible court claims for unpaid overtime from the last 3 years.
Summary
Given the specific situations of Employees, studying and part-time Employees, Employers should apply with special care the provisions of the Labour Code regarding the rest of these Employees. The CJEU judgment of 19 October 2023 brought significant changes to the overtime pay rules for part-time Employees. While the CJEU ruling does not change the law, it does shape the practice in this area, which for Employers means that they need to adapt their procedures. Our Team is constantly at your disposal and will be happy to assist you in making sure that the actions taken by your Organisation are in compliance with the applicable labour legislation!
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