These dates are not set in stone. Anyone who arrives on these dates looks bewildered at the calendar and calculates how much work is left to park it for a while. The long-awaited vacations may cause more doubts than one and can even lead to a dispute with the company if they are not in compliance with the law.
The Workers’ Statute stipulates that the annual paid vacation must not exceed thirty calendar days. Comparing the Spanish regulation to that of EU partners shows it is lower than France’s. We can also extend them, because, as Javier Arrieta (University of Deusto professor of Labor and Social Security Law) points out, “it’s possible to increase this period through collective agreement or individual contracts.”
The expert adds that the right to 30 days is the same for all workers. It is not possible to make distinctions based upon the type of contract-whether indefinite, temporary, full-time, or part-time-since it is a right that must fulfill a purpose; seek the needed rest to recover from any physical and psychological wear that work entails>>.
Rest days are calculated according to how many hours we worked. If you work throughout the year, there will be thirty days. Each month will correspond to 2.5 rest days because the thirty days are divided into twelve months. Arrieta explains that if a worker joined, for instance, on March 1, then they would have 25 calendar days vacation. Since January and February do not count, you just need to multiply by ten.
One detail: If the agreed date for vacation starts coincides with the weekly rest period, the 30 days start to count starting the next working day.
The employer is required to give vacations. The Workers’ Statute states that financial compensation cannot replace the actual enjoyment of vacations. It is only allowed if the worker has not enjoyed vacations. This can happen in temporary contracts less than one year or retirements.
They cannot take them away, even as a possible punishment. The Workers’ Statute also expressly prohibits imposition of sanctions that would undermine the right for rest, says the expert.
The company establishes the calendar. However, the vacation period dates are marked in it. “The specific days must be agreed upon by both the employer and worker according to the provisions of the collective agreement,” says the professor of Labor Law and Social Security.
What happens if we disagree? “If there’s a discrepancy the courts will grant each side the power to set fifteen day, which will then be included in the sentence which will be irrevocable.”
“Unless this possibility is permitted by collective agreement or agreement between the employer, it’s not possible for the worker unilaterally to decide to split his vacations.” “According to the provisions of International Labor Organization, the vacation periods can be divided as long as at minimum one of these fractions is for at least fifteen consecutive days.” We can have one week and another month of vacation, but eventually we will need to take both.
According to Professor Deusto from the University of Deusto at this point, there are two assumptions that must be distinguished. One, the worker is sick during the year but not during vacation. Arrieta states, “If he is ill, he can return to work and still enjoy vacation, as though he had worked every single day. The time off will be considered effective services.”
But, if vacations and sick days coincide in time, regardless of whether the incapacity occurred before or during rest days, the worker will have the right to the same number of days when he returns to work as sick leave and sick leaves. holidays”.
According to established jurisprudence and as a rule, if we don’t take all days that correspond with us during the calendar year we lose the ones that remain in the pipeline. They cannot be deferred or carried over to the next year. To prevent this resource being used to avoid the impossibility to ‘exchange’ vacations for cash, financial compensation is not available for any rest days not taken.
There are three exceptions that allow vacations to be transferred from one year to the next. First, if they are associated with a temporary disability that is a result of pregnancy, childbirth, or breastfeeding. In this instance, you have the right to enjoy them at a different date than the leave even though the calendar year in which they correspond has expired. They will be suspended for the same reason if they overlap with the period due to birth. This includes childbirth, care of the minor, custody for adoption and foster care, and risk during pregnancy and lactation.
The third exception is when vacations coincident with temporary disability due other contingencies than those mentioned above. However, this exception has a nuance. “If the worker is unable to work due to temporary disability, he may resume his employment after the period of 18 months has elapsed since the date they began.
Arrieta replies, “Justified absences, which include the exercise of fundamental rights to strike, don’t affect the duration vacations or their remuneration as established by the Supreme Court.”
It is important to clarify that in the event of a temporary employment regulation causing the suspension of an employment contract, the days of nonwork (which are unemployed) do not give the right to vacations. Therefore, the annual rest must be decreased by the days in ERTE.
