Can an employee’s annual leave be transferred from one company to another?

Publication / 08.01.2024

In practice, the so-called “tripartite agreement of the parties” is often used. What is its purpose and, above all, what is its impact on the employee’s right to annual leave?

Well, a tripartite agreement is an agreement to terminate an employment contract with one employer by mutual agreement of the parties and to establish a contract with the other employer on the terms agreed in advance. Most often, it also follows a prior agreement between the two employers.

The effect of this termination is a change of employer, which occurs virtually overnight, most often on employment terms that are convenient to the employee and previously agreed upon.

However, in addition to change of employment itself, employees are also interested in transferring their existing, unused annual leave from one company to another, so that the opportunity to use it in kind is preserved.

Employers, however, have doubts about whether such a solution is correct and thus safe for them.

From the legal perspective, the situation is simple, because “in the event that an employee does not use his annual leave in full or in part due to the termination or expiration of the employment relationship, the employee is entitled to a cash equivalent. On the other hand, such obligation (to pay the cash equivalent) does not apply to this employer, and only in such a case, if the parties agree on the use of annual leave while the employee remains in the employment relationship on the basis of another employment contract concluded with the same employer immediately after the termination or expiration of the previous employment contract with this employer” (Article 171 § 3 of the Labor Code).

It should be emphasized that, in accordance with the already well-established case law, as of the date of termination of the employment relationship, the employee’s right to leave in kind transforms into the right to a cash equivalent for unused leave. Also on this date, the statute of limitations for the claim for cash equivalent for unused vacation leave in kind and not overdue begins to run.

The above-mentioned regulation in the Labor Code indicates that there is no legal possibility of the so-called “transfer” of annual leave to a new employer, since the obligation to pay the equivalent is on the employer who employed the employee before the termination of employment. Any different view creates legal and business risks for the employer. It results from Article 171 of the Labor Code that the new employer does not assume the obligation to grant vacation leave to which the employee has earned the right with the former employer.