A scenario in which an employee begins serving a prison sentence during the course of the year raises a number of practical questions for the employer regarding annual leave.
An employee has been ordered to serve their sentence of imprisonment. How does this affect their entitlement to annual leave? Is their annual leave suspended? Is a convicted employee entitled to annual leave whilst serving their sentence?
Suspension of annual leave
The Labour Code exhaustively lists the grounds on which annual leave is suspended (e.g. temporary incapacity for work or maternity leave). Serving a prison sentence is not listed among these reasons. Therefore, if an employee is on authorised annual leave when they commence serving their sentence, the employer is under no obligation to suspend the annual leave – such leave will run until the originally scheduled end date and the period of authorised absence from work without pay only begins after the annual leave has ended.
Recalculation of holiday entitlement
Previously, serving a prison sentence was a ground for curtailment of the imprisoned employee’s holiday entitlement, but this is no longer the case – reductions can now only be applied for unauthorised absences.
The current approach to holiday entitlement is based on time actually worked.
The period of imprisonment is not counted as time worked nor as a qualifying obstacle to work. Employees therefore do not accrue the full annual entitlement, but only a proportionate part thereof corresponding to the time actually worked; the entitlement must therefore be recalculated.
Taking leave in excess of entitlement and repayment of holiday pay
- If the employer has authorised the employee to take leave equivalent to their full annual entitlement before the employee begins serving their sentence, it may subsequently transpire that the employee has taken more leave than corresponds to their actual (pro-rated) entitlement. In such a case, the employee is obliged to repay the portion of the holiday pay already paid for leave to which they were not entitled.
- Conversely, if, following the recalculation of the holiday entitlement, part of the leave remains, the entitlement is retained by the employee and, in the event of termination of the employment relationship, the employer is obliged to pay this entitlement to the employee in the form of holiday pay.
Allocation of annual leave whilst serving a prison sentence
Whilst serving a prison sentence, the employer may only allocate the remaining annual leave at the express request of the employee. However, the employer is not obliged to grant this request.
Author: Matěj Rendl, Junior Associate, Employment, LYNX Czech Republic
Source: Labour Code (Act No. 262/2006 Coll.)