Today we talk about a right that all workers desire and wait for with great joy every year: the right to enjoy vacations. We will review concepts such as accrual, its duration and its interaction in situations of temporary disability. Likewise, we will comment on ruling 560/2021, of July 20, 2021, of the Superior Court of Justice of the Canary Islands and its practical impact.
Go for it!
Article 38 of the Workers' Statute, establishes that every worker has the right to enjoy at least 30 calendar days. Therefore, no pact, agreement, decision, or collective agreement can establish a shorter duration. In any case, this period can be improved, but never worse.
Any agreement between company and worker that entails replacing the enjoyment of vacations with financial compensation will be null - that is, without effect. Vacations can only be paid at the time of termination of the employment relationship in the settlement.
The right to enjoy vacations is inalienable and unavailable for the parties, and it is also a right that expires, so that, if a worker does not use his vacation during the calendar year, he would lose the right to enjoy it and would not be able to claim financial compensation.
The vacations that are paid in the settlement for social security purposes are considered a situation assimilated to discharge; For this reason, until all the days indicated in the settlement have passed, unemployment benefits cannot be requested; For the SEPE, this person is “as if” he or she were registered with social security.
How are vacations set?
The period of enjoyment is set by mutual agreement between the company and the worker. The collective agreement may establish criteria and/or procedures in this regard.
The worker must know the corresponding vacation dates two months before the start of the vacation. This is the same period to file a lawsuit in case of disagreement before the social jurisdiction.
What happens during the time we are on medical leave?
When the vacation period coincides with a temporary disability that makes it impossible for the worker to enjoy them totally or partially during the calendar year to which they correspond: the worker may do so once his disability ends and as long as no more than 18 months have elapsed from the end of the vacation. year in which they originated.
Sentence 560/2021, of July 20, 2021, of the Superior Court of Justice of the Canary Islands
A ruling from the TSJ of the Canary Islands has recently been published in RRSS in which it is stated that when a worker enjoys more vacations than those accrued, said excess cannot be regularized/compensated subsequently in the settlement, as it is considered to have been a concession. voluntary of the company. The TSJ considered that the excess vacation taken is not a credit of the employer against the worker compensable in the settlement, since its early enjoyment is a voluntary concession of the employer and the obligation to return said vacation should not fall on the worker - via settlement-.
This is a ruling from a TSJ, so it does not feel jurisprudence, and that there are also other Supreme Courts (Madrid and Castilla-León) that have resolved similar cases in the opposite direction, so this matter will surely end up in the Supreme Court and clarify the criteria to be followed for all operators in the workplace.
This ruling basically obliges companies not to grant more vacations than are strictly accrued. For example, all those people who during the month of March want to enjoy 15 days, according to this ruling, could only enjoy 5 days of vacation in March - the general rule is that for each month that passes, you have the right to 2.5 vacation days (30 days/12 months = 2.5 days per month) -.
It seems reasonable that the above could be saved with the drafting of a clause in the contract by which it is qualified, that in the event that “…on the date of termination of the contract, the worker had an excess of vacation time taken, the company may deduct said excess from the settlement, regularizing the situation.”
In the meantime, look forward to our next vacation and enjoy it!
