Monday, October 3

Can you take vacations at work whenever you want?


Arriving these dates, who more, who less, looks askance at the calendar calculating how much is missing to be able to park work for a little while. But the long-awaited vacations can generate more than one doubt and even be a source of dispute with the company if we do not know what the law says about their planning.

How are the days that correspond to us of vacations calculated?

As established in the Workers’ Statute, the paid annual vacation period must be at least thirty calendar days per year worked. If we compare the Spanish regulation with that of our EU partners, it is a minimum only equaled in France. In addition, we can stretch them, since, as Javier Arrieta, professor of Labor and Social Security Law at the University of Deusto, points out, “it is possible to increase that period by collective agreement or individual contract.”

In any case, adds the expert, the right to thirty days “is the same for all workers, without it being possible to establish distinctions based on the type of contract -whether indefinite or temporary, full-time or part-time- since it is a right that has to fulfill a purpose; seek the necessary rest to recover from the physical and psychological wear and tear that work entails».

If we have not worked the full year, the rest days are calculated proportionally to the time we have worked. «If you work all year round, you will have thirty days, so each month corresponds to 2.5 rest days, since the thirty days are divided by twelve months. If, on the other hand, a worker were to join, for example, on March 1, they would be entitled to 25 calendar days of vacation, since, in this case, since January and February are not computed, you only have to multiply by ten”, explains Arrieta.

A detail: when the agreed date for the start of the vacation coincides with the weekly rest, the thirty days begin to count from the next working day.

Can the company deprive us of them? How is it compensated?

«The employer has the obligation to grant vacations and, precisely, for this obligation to be effective, the Workers’ Statute establishes that the actual enjoyment of the rest period cannot be replaced by any financial compensation. The only case in which it is allowed is when the termination of the employment relationship occurs before the worker has enjoyed their vacations, as can occur in temporary contracts of less than a year or in retirements, ”clarifies Arrieta.

Another fact: they cannot deprive us of them, not even as a possible ‘punishment’. “This is also reflected in the Workers’ Statute, which expressly prohibits the imposition of sanctions that undermine the right to rest,” underlines the expert.

Can they force us to take them on specific dates or to split them?

The calendar is established by the company, but, within the dates marked in it as vacation period, “the specific days must be set by mutual agreement between the employer and the worker in accordance with the provisions, where appropriate, in the collective agreement », says the professor of Labor Law and Social Security.

What if we don’t agree? “If there is a discrepancy, the courts will grant each party the power to set fifteen days, which will be included in the sentence, which will be irrevocable.”

And can the employee divide them at his convenience?

“Unless that possibility is allowed by collective agreement or agreement with the employer, it is not possible for the worker to unilaterally decide to split his vacations.” And if that possibility exists, it cannot be done in any way; “In accordance with the provisions of the International Labor Organization, the vacation period can be split as long as at least one of these fractions is for a minimum of fifteen uninterrupted days.” In other words, we can take a single week now and another in a month, but at some point we will have to take two together.

What happens when the worker is or has been sick?

At this point, according to the professor from the University of Deusto, two assumptions must be differentiated. On the one hand, that the worker has been sick at some point during the year, but outside the vacation period. “If so, once he has returned to work, he will maintain the right to vacation as if he had worked every day, since the time off will be considered as effective services,” indicates Arrieta.

However, if the vacations and sick leave coincide in time, “regardless of whether the incapacity occurs before or during the rest days, when the worker returns to his job he will be entitled to as many days as the sick leave and sick leave have overlapped.” holidays”.

Can they be enjoyed outside the calendar year in which they were generated?

As a general rule and according to settled jurisprudence, if we do not take all the days that correspond to us during the calendar year, we lose those that have remained in the pipeline. There is no possibility to defer them and carry them over to the following year. In addition, to prevent this resource from being used at some point to circumvent the impossibility of ‘exchanging’ vacations for money, it is also not possible to receive financial compensation for those rest days not taken.

But there are three exceptions that do allow vacations to be carried over from one year to another. The first, when they coincide with a temporary disability derived from pregnancy, childbirth or breastfeeding. “In this case, you will have the right to enjoy them on a date other than that of the leave, even if the calendar year to which they correspond has ended.” The same happens when they overlap with the period of suspension of the employment contract due to birth, which includes childbirth and care of the minor; by adoption, custody for the purpose of adoption and foster care; or due to risk during pregnancy or risk during lactation.

Finally, the third exception occurs when vacations coincide with temporary disability due to contingencies other than those indicated above, although with a nuance. “If so, the worker may do so once his disability ends, provided that no more than 18 months have elapsed from the year in which they originated.”

Do justified absences, such as in the event of a strike, generate vacations?

“Justified absences, including the exercise of the fundamental right to strike, do not affect the duration of vacations, nor their remuneration, as established by the Supreme Court,” Arrieta responds.

However, it must be clarified that in cases of suspension of the employment contract due to temporary employment regulation, the days of non-work, which are unemployment, do not generate the right to vacations, so the annual rest must be reduced by function of the days in ERTE.


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