Carry-over of leave to the following calendar year

During the previous year, significant legislative changes took place in the area of Czech labour law, particularly in the area of leave from work. One of the new features introduced is the possibility to carry over leave to the following calendar year, based on a written request from the employee. Under the previous legislation, the transfer of leave was either automatic by law or by decision of the employer. A third option has now been added in the form of a request from the employee, which was not provided for in the current leave legislation in force until 31 December 2020.

As a general rule, the employer is obliged to determine the employee’s leave so that it is taken in the calendar year, in which the employee’s right to leave accrues. However, there are exceptions, under which this rule may not be observed. In the first place, these are obstacles in work on the part of the employee or urgent operational reasons that prevent the employer from determining the use of the employee’s leave in a given calendar year.

The second group of exceptions relating to the employer’s obligation to determine the leave so that the employee would take it in the respective calendar year is the possibility of not taking all of the leave by the end of the calendar year and, on the contrary, to carry over part of it to the following calendar year upon the employee’s written request. Leave in excess of 4 weeks and 6 weeks for teaching and academic staff in universities may be transferred in this way, taking into account the legitimate interests of the employee.  

Therefore, if the employee makes an individual written request to take leave in the following year and the employer grants the request, the employee’s leave in excess of the above minimum limit (4 or 6 weeks) will be carried over to the following year.

From the above, it can be concluded that employees with the minimum amount of leave, i.e. 4 weeks, could not apply to carry it over to the following year because there would simply be nothing to carry over. It is therefore appropriate to adopt a more favourable interpretation, on the basis that the condition of having taken at least 4 weeks in one year will be met even if older leave carried over from the previous year is taken.

If the employee does not make such a request, or the employer does not grant such a request and the leave is not taken during the respective year, it does not mean that the employee would forfeit the leave or that the leave could be reimbursed. Leave can only be paid on termination of the employment. Therefore, the procedure will be such that the transfer of leave will occur automatically by law, but the employer will thereby commit an administrative offence, as this action will violate his legal obligation to determine the use of leave before the end of the respective calendar year, for which a fine up to CZK 200,000 may be imposed on the employer by the Labour Inspectorate.

If a situation arises, in which leave cannot be taken in the calendar year in question, whether due to obstacles to work on the part of the employer, for operational reasons or to carry over leave at the request of the employee, the employer shall be obliged to determine the use of the leave so carried over by the end of the following calendar year at the latest. In other words, if leave cannot be taken for these reasons, the applicable leave entitlement shall automatically carry over in full to the following calendar year. The employer thus still has the entire following calendar year (i.e. the year following the year, in which the employee’s holiday entitlement accrued) to properly determine the employee’s entitlement to leave from work.

However, if the employer does not determine the duration of the leave even by 30 June of the following calendar year, the right to determine the leave also passes to the employee. The employer does not lose his right completely, but it is now also the employee who can decide on the duration of the leave. In order to avoid such a situation, it is sufficient for the employer to decide on the time leave is to be taken by 30 June. It does not matter whether the employee actually takes the leave in the first or the second half of the respective calendar year. However, the employee is still obliged to notify the employer in writing at least 14 days before taking leave, unless they mutually agree on a different period of time for the announcement.

Finally, it should be noted that it is still the employer, who is responsible for the proper determination of the period of leave before the end of the following calendar year, as the employee only has the right, not an obligation, to determine the period of leave. Thus, the employer cannot justify his inaction on the grounds that the employee did not take leave before the end of the calendar year, despite being entitled to do so.

Author: Veronika Odrobinová, Jessica Vaculíková

Author: Veronika Odrobinová, Jessica Vaculíková