Can the employee approve his/her own leave?

The Labour Code is quite clear when it comes to approving leave. The duration of leave is determined by the employer, who should take into account the legitimate interests of each employee concerned. In employment law, therefore, the employer is always the master of the leave, and it is the employer who determines when and for how long you will take your leave on a given date. But can the employee also approve the leave?

Author of the article: ARROWS (Mgr. Jakub Oliva, LL.M., MSc., office@arws.cz, +420 245 007 740)

In real life, employers often try to accommodate their employees' requests and allow them to take leave in accordance with their personal schedules. This approach can be seen as an expression of goodwill and part of good care for employees, but it is not a strict legal obligation.

However, did you know that there is also a situation where the leave is determined by the employee themselves and the employer has to respect this willy-nilly?

Let's look at a practical example:

An employee, Mr. Novotny, had a long term illness of a colleague and so Mr. Novotny did not have a substitute for the entire year 2021. He therefore had to be off work for the whole year and could not take his annual leave. So Mr Novotny carries over 4 weeks of "old" leave into 2022.

But Mr. Novotny is, understandably, severely overworked and plans to take a big break. His colleague, however, still has not returned from sick leave, so his employer has not granted him leave.

However, Mr Novotny has the right to determine his own leave time from 1 July 2022. The Labour Code allows him to do so. Thus, from 1 July 2022, Mr Novotny will schedule 4 weeks of leave in a row himself and his employer has no way of effectively combating this.

This may seem surprising, but it is true. The Labour Code does indeed contain these rules:

"If the taking of leave is not determined by 30 June of the following calendar year at the latest, the employee shall also have the right to determine the taking of leave. The employee must give the employer at least 14 days' written notice of the taking of leave, unless the employee agrees with the employer on a different period of notice", see Article 218(4) of the Labour Code.

Watch out for early notice!

Thus, the employee only needs to keep in mind that he/she must give his/her employer 14 days' written notice of the date of taking leave. It can be that simple in practice. Indeed, this provision is a kind of penalty for the employer's failure to order the employee to take leave in the year in question or in the next six months thereafter.

Can the employer defend itself in any way?

In practice, however, it is disputed among labour law experts whether a company can withdraw an employee from such a designated leave (Section 217(3) of the Labour Code). In our opinion, the employer does not have the right to recall the employee from the leave, as in such a case this institute would be completely meaningless.

However, it is possible to encounter opinions from the opposite spectrum (cf. In: VALENTOVÁ, Klára, PROCHÁZKA, Jan, JANŠOVÁ, Marie, ODROBINOVÁ, Veronika, BRŮHA, Dominik et al. § 218 [Obligation to determine the use of leave; 31 October of the following year]. In: VALENTOVÁ, Klára, PROCHÁZKA, Jan, JANŠOVÁ, Marie, ODROBINOVÁ, Veronika, BRŮHA, Dominik et al. Labour Code. 1st edition (1st update). Prague: C. H. Beck, 2020, marg. no. 14.).

However, by setting the working time correctly and appropriately, most problems with taking leave can be effectively avoided.