28.04.2023 | News, SAVALnews
According to the Annual Holidays Act, an employee who, before the start of their annual holiday or part of it, is incapacitated for work because of childbirth, illness or accident has, at their request, the right to postpone their annual holiday. For the holiday to be postponed, an express request by the employee is required.
Also, the employee has, at their request, the right to have the annual holiday or part of it postponed if it is known that during their holiday they will be receiving medical treatment or other comparable treatment during which they will be unable to work.
If the incapacity for work due to illness, accident or childbirth begins during the annual holiday or part of it, the employee has the right, at their request, to postpone to a later date any days that exceed the initial six days of an incapacity for work occurring during the holiday. The above-mentioned six waiting days must not decrease the employee’s right to a four-week annual holiday.
In both situations, the employee must, without delay, make the request to postpone the annual holiday as well as present a notification of their incapacity for work as soon as possible after falling ill. Thus, for example, a request made after the end of the holiday does not, generally, oblige the employer to postpone the holiday. Furthermore, the employer has no obligation to, on their own initiative, take the incapacity for work into account. The employee must, at the request of the employer, present a reliable account of their incapacity for work, usually in the form of a medical certificate. The right to postpone one’s holiday does not apply, among others, to leave in lieu of a holiday bonus, carried-over holiday or flexitime holiday unless it is separately stipulated in the collective agreement for the industry or it is agreed upon or instructed in a company-specific agreement.
In practice, the employee must always be informed of the instructions issued by the employer with regard to the notification of illness, including who they must notify, how and when they must notify and any other courses of action associated with falling ill, and must comply with these.
The full period of six waiting days is applied only to annual holidays of five weeks and longer earned by the employee. In other words, the waiting days must not reduce the employee's right to an annual four-week holiday. Consequently, the full period of six waiting days can only be implemented if the employee's holiday entitlement is a minimum of a full five weeks (30 days). The calculation/consideration period of waiting days is not per holiday period, but per year, calculated separately for each holiday earning year.
If no collective agreement is applicable to the employment relationship or if nothing is stipulated on the matter in the collective agreement, the provision on waiting days in the Annual Holidays Act is applicable. At the moment, however, it has been agreed in the collective agreements for state and local public officials that the concept of waiting days is not applicable at all. A corresponding provision is also included in some private sector collective agreements, although the majority of the private sector collective agreements comply with the above-stated provisions regarding waiting days in the Annual Holidays Act.
Taking the holiday days postponed due to an incapacity for work is generally agreed upon by the employer and employee. As a rule, the holiday must be granted before the beginning of the next holiday season, in other words by 30 April. If no agreement is reached, the employer will designate the timing of the postponed holiday in accordance with the timelines more specifically stipulated by legislation and will notify the employee two weeks before the beginning of the holiday or, if this is not possible, at the latest a week before the beginning of the holiday.
Earned holidays raise questions when an employment relationship ends. If the employer has terminated the employment relationship (especially on financial grounds), the employer would often want the employee to take all their holiday during the term of notice. The employer can, however, only require the employee to take the holiday that has been accrued by the end of the previous holiday credit season, in other words by 31 March. The employer cannot unilaterally require the employee to take any holiday accrued after this date until after 2 May of the next year, if the term of notice continues this long.
Of the holiday accrued before 31 March (normally 30 holiday days or 5 holiday weeks), the employer can only require the employee to take 24 holiday days during the so-called holiday season. According to the Annual Holidays Act, the holiday season runs from 2 May to 30 September every year. Thus, the employer can designate that the fifth holiday week (winter holiday) shall be taken only after 1 October. The employer cannot, either, require the employee to take their holiday right away. Instead, the timing of the holiday must, as a rule, be notified a month in advance or, if this is not possible, at least two weeks before the holiday begins.
More holiday can be taken during the term of notice if the employer and employee agree upon it separately. However, this is not usually sensible for the employee as the employer will, in any case, have to pay the holiday not taken as holiday compensation at the end of the employment relationship. On the other hand, paying holiday bonus in addition to holiday compensation / holiday pay requires, as stipulated in several collective agreements, the actual taking of holiday time. The holiday bonus is usually no longer calculated in the holiday compensation, although this is affected by the collective agreement with which the employer complies. If the employer is not bound by any collective agreement, a holiday bonus does not have to paid at all, unless otherwise agreed in the employment contract or unless it is an established practice in the organisation.
In some cases, the employee wishes to stop working for the company immediately upon resignation and demands that they be allowed to use their accrued holiday at once, thus enabling them to stop working sooner or, even, immediately. The employee does not, however, have the right to take their holiday at any time of their choosing, even during the term of notice, but instead, the timing of the holiday needs to be agreed upon. Eventually, the employer will designate the timing of the holiday within the limits stipulated in the Annual Holidays Act (see above).
However, the timing of the holiday, also during the term of notice, is usually agreed on by the employer and employee together, and the Annual Holidays Act even permits a situation in which the employer and employee agree that all annual holiday accrued by the end of the employment relationship shall be taken during the employment relationship. The employee should, however, consider if this is financially profitable for them.
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Master of Laws with court training at YTY
The articel has been published on YTY membership magazine 2/2023