R. Joskaudienė states that it is legally important to distinguish two things: the handover of work and cooperation, which may be an employee’s duty, from the organization of substitution, which is primarily the employer’s responsibility.
“The Labor Code does not establish a general obligation for the employee to find a colleague who would agree to substitute for them during annual leave,” emphasizes the lawyer.
According to her, the employer may require the employee to:
* comply with the established procedure for submitting leave requests;
* notify in advance about planned leave;
* inform about unfinished work and upcoming deadlines;
* hand over documents, information, and access;
* prepare a work handover or substitution plan;
* cooperate in coordinating the leave period.
“However, the final decision on who will substitute the employee, how the workload will be distributed, whether a temporary employee is needed, and how the substitution will be formalized and paid for, belongs to the employer or their authorized person,” the lawyer reminds.
Why is the organization of substitution considered an employer’s function?
Article 49 of the Constitution of the Republic of Lithuania enshrines the employee’s right to rest and annual paid leave. Articles 126–128 of the Labor Code establish the duration of annual leave, the order of granting it, and the procedure for formalizing it. Annual leave must be granted at least once during the working year.
R. Joskaudienė points out that these provisions do not establish a general obligation for the employee to “secure” a substitute before the leave.
Article 32 of the Labor Code provides that the employer has the right to control and organize the work process, and the commercial, financial, or production risk arising from performing work functions lies with the employer.
“Therefore, from a systemic perspective, issues of the number of employees, distribution of their functions, continuity of activities, and substitution primarily fall within the employer’s organizational competence,” said R. Joskaudienė.
On the other hand, Article 24 of the Labor Code obliges both parties to the employment contract to act in good faith, cooperate, and not abuse their rights.
“Therefore, an employee cannot, for example, deliberately conceal important work on the last day, fail to transfer information, or leave colleagues in the dark. However, the duty to cooperate is not the same as the duty to personally resolve the employer’s personnel organization issue,” emphasized the lawyer.
Can the employer require coordination of substitution at all?
According to R. Joskaudienė, the employer can require coordination of substitution if such a requirement is understood as procedural cooperation, not as an absolute condition for taking leave.
Paragraph 6 of Article 128 of the Labor Code allows the employer to establish the procedure for formalizing annual leave. Therefore, internal rules may specify that when submitting a request, the employee must:
* indicate which tasks need to be taken over;
* specify which colleagues are familiar with the ongoing projects;
* discuss the preliminary handover of work;
* inform the direct supervisor about possible operational risks.
“However, a rule according to which a leave request is not even accepted or considered until the employee obtains the consent of a specific colleague may be legally questionable.
A colleague may refuse to work a heavier load, may be on leave, sick, or lack the necessary competence. The employee does not have the employer’s authority to oblige another employee to perform additional or different work functions, determine their workload, or agree on additional pay.
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Therefore, the employee may be required to contribute to the handover of work but cannot be held ultimately responsible for another employee agreeing to substitute for them,” said the lawyer.
The right to leave does not mean the right to unilaterally choose any dates
She added that it is important not to go to the other extreme – although the employee has the right to annual leave, this usually does not mean that the employer must approve every period chosen by the employee.
The State Labor Inspectorate explains that the leave period is determined by balancing the employee’s interest in taking leave at a convenient time and the employer’s interest in properly organizing the work process. The employer, upon receiving a request for a specific period, decides on granting leave, and the date and duration must be agreed upon by the parties. Exceptions are cases specified in paragraph 5 of Article 128 of the Labor Code, where the employer must satisfy certain employees’ requests.
If the workplace already has an approved order for granting annual leave and specific dates are agreed upon in advance, the State Labor Inspectorate indicates that an additional employee request is usually not necessary. In such a case, the approved schedule itself expresses the parties’ agreement.
“Thus, the employer may disagree with a specific period chosen by the employee due to real work organization circumstances, but it would be legally flawed to link the employee’s right to leave indefinitely only to the condition: ‘you will take leave when you find someone to substitute for you.’”
The employer should assess the situation, make a decision, and if unable to grant leave at the requested time, offer another reasonable period,” emphasized the lawyer.
Substitution cannot become an unpaid favor to a colleague
She reminded that the increased workload due to a colleague on leave must be properly assessed and paid for.
If the substituting employee:
* performs the same functions but their workload increases – according to paragraph 7 of Article 144 of the Labor Code, increased pay must be provided;
* performs the same tasks exceeding the established working hours – such work may be considered overtime and paid at no less than one and a half times the employee’s wage;
* begins to perform another function not specified in their employment contract – according to Article 35 of the Labor Code, a written agreement on additional work is required, specifying functions, scope, time, and remuneration.
“If substitution is already clearly included in the employee’s job function or job description, additional pay depends on whether the workload actually increased or the established working hours were exceeded.
Therefore, the employer cannot simply say: ‘Arrange it among yourselves.’ An agreement between colleagues does not replace the employer’s obligation to properly formalize additional work, record working time, and pay the due wage,” summarized R. Joskaudienė.
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