Can I choose the date of my vacation at work?
Labor Law
It is not the first time that one has heard that vacations are chosen according to the fact that "fifteen days are chosen by the worker and fifteen days by the company" or that "a few days before starting them they have been approved for me."
Is there a time frame by which I can be notified of the vacation date?
We must be clear that these often normal comments should not be allowed, since the law does not indicate this type of behavior. Workers must know at least two months in advance the date of the vacation to be enjoyed, since otherwise our rights would be violated, and we would not be able to react when planning a trip, managing our own time, meetings. family, etc.
The period in which we are going to enjoy vacations must be set by mutual agreement between the employer and the worker, always taking into account the applicable collective agreement. Therefore, annual vacation planning must be governed by the applicable collective agreement.
We must know that by law we have the right to enjoy thirty calendar days of vacation during one year of work; many times the applicable agreement may stipulate them in working days.
What happens if there is no agreement between employer and employee?
In cases of disagreement between the employer and the worker, the provisions of Article 38 of the Workers' Statute will apply, regulating that the competent jurisdiction will be in charge of setting the date that corresponds to the enjoyment of the same, being its decision. irrevocable.
However, there may be cases where the company cannot authorize the worker's vacation in the summer for compelling reasons, that is, for reasons that can be assimilated to productive, organizational or technical circumstances. In these specific cases, two things can happen: the employee accepts it and enjoys the same vacation as long as his employer allows it, or he can terminate the contract; in this case, he can choose to terminate it, and must receive compensation concept the amount of 20 days of salary.
Therefore, the company cannot determine the exact days that the worker must take, however, it can stipulate a wide range of vacation dates. In the hypothetical case that the company imposes a specific period to enjoy vacations, the worker may challenge said agreement before the social jurisdiction. To do this, he must go to a law firm specializing in labor law, so that they can advise him on the viability of the process and the judicial challenge.
If I have been on sick leave or in a temporary disability procedure, do I lose my vacation?
There may be cases in which during a sick leave or temporary disability procedure the assigned vacations may coincide; in this case, there are many myths that the worker loses his vacations because he is on sick leave. This statement is not true, the worker will be able to enjoy the vacations that correspond to him by law on a different date, always with the exception that no more than 18 months have passed.
Could I lose the vacation I haven't enjoyed?
It depends largely on the circumstances that have led to it, that is, below we present the cases in which the worker will not be able to lose the vacation days accrued on previous dates or years:
It should be noted that if a worker does not want to enjoy vacations and wants payment for vacations not taken through the payment of amounts equivalent to economic compensation, the employer will not be able to carry out this practice. It must be understood that the enjoyment of obligations is mandatory and can only be economically compensated in cases in which a worker has ceased his employment relationship and it has come to an end, in this case the worker will be able to receive said benefits. vacation in the settlement, but this is the only exception.
Remember that the vacation period stipulated in the agreement can never be replaced by financial compensation, except in cases in which the employment contract is terminated or a dismissal occurs, and the corresponding vacation has not been enjoyed.
At Forcam Abogados we have offices in Barcelona, Madrid and Reus.
Is there a time frame by which I can be notified of the vacation date?
We must be clear that these often normal comments should not be allowed, since the law does not indicate this type of behavior. Workers must know at least two months in advance the date of the vacation to be enjoyed, since otherwise our rights would be violated, and we would not be able to react when planning a trip, managing our own time, meetings. family, etc.
The period in which we are going to enjoy vacations must be set by mutual agreement between the employer and the worker, always taking into account the applicable collective agreement. Therefore, annual vacation planning must be governed by the applicable collective agreement.
We must know that by law we have the right to enjoy thirty calendar days of vacation during one year of work; many times the applicable agreement may stipulate them in working days.
What happens if there is no agreement between employer and employee?
In cases of disagreement between the employer and the worker, the provisions of Article 38 of the Workers' Statute will apply, regulating that the competent jurisdiction will be in charge of setting the date that corresponds to the enjoyment of the same, being its decision. irrevocable.
However, there may be cases where the company cannot authorize the worker's vacation in the summer for compelling reasons, that is, for reasons that can be assimilated to productive, organizational or technical circumstances. In these specific cases, two things can happen: the employee accepts it and enjoys the same vacation as long as his employer allows it, or he can terminate the contract; in this case, he can choose to terminate it, and must receive compensation concept the amount of 20 days of salary.
Therefore, the company cannot determine the exact days that the worker must take, however, it can stipulate a wide range of vacation dates. In the hypothetical case that the company imposes a specific period to enjoy vacations, the worker may challenge said agreement before the social jurisdiction. To do this, he must go to a law firm specializing in labor law, so that they can advise him on the viability of the process and the judicial challenge.
If I have been on sick leave or in a temporary disability procedure, do I lose my vacation?
There may be cases in which during a sick leave or temporary disability procedure the assigned vacations may coincide; in this case, there are many myths that the worker loses his vacations because he is on sick leave. This statement is not true, the worker will be able to enjoy the vacations that correspond to him by law on a different date, always with the exception that no more than 18 months have passed.
Could I lose the vacation I haven't enjoyed?
It depends largely on the circumstances that have led to it, that is, below we present the cases in which the worker will not be able to lose the vacation days accrued on previous dates or years:
- If, due to the fault of the employer or company, the previous vacation cannot be enjoyed.
- If the worker is on sick leave or temporarily disabled.
- If the worker is enjoying maternity leave, paternity leave or breastfeeding leave.
It should be noted that if a worker does not want to enjoy vacations and wants payment for vacations not taken through the payment of amounts equivalent to economic compensation, the employer will not be able to carry out this practice. It must be understood that the enjoyment of obligations is mandatory and can only be economically compensated in cases in which a worker has ceased his employment relationship and it has come to an end, in this case the worker will be able to receive said benefits. vacation in the settlement, but this is the only exception.
Remember that the vacation period stipulated in the agreement can never be replaced by financial compensation, except in cases in which the employment contract is terminated or a dismissal occurs, and the corresponding vacation has not been enjoyed.
In case you need our legal services, Forcam Abogados will advise you on your labor rights.
Contact us, and our lawyers specializing in labour law will study your specific case.At Forcam Abogados we have offices in Barcelona, Madrid and Reus.