Article 38 of the Workers’ Statute regulates the right to vacations of workers, as we explained in the post “ right to vacations ”. We remind you that vacations are a right and an obligation of the worker. They cannot be waived, they cannot be accumulated and they are paid.
Claiming unused vacations
The general rule is that holidays cannot be compensated financially , except in certain cases that we will analyze later. Only holidays for the current year can be claimed, that is, before December 31 of each year.
If the employee has not taken his or her vacation, he or she spam database must request it from the company. The company must authorize it or have a court ruling that recognizes it. If the company continues to refuse to allow him or her to take his or her vacation days, he or she can file a claim before the Social Court. The ruling issued will not be appealable . The deadline for filing a claim is 20 days after the request for vacation from the company.
Financial compensation for vacations
Holidays are a right and an obligation of the employee , and therefore cannot be compensated financially. This prohibition cannot be circumvented by agreement of the parties, either individually or through a collective agreement. Nor can it be imposed unilaterally by the company.
"Agreement in which the worker gives up his vacation in exchange for money is void."
The general rule is that the worker must enjoy these days of rest, but there are exceptions. The Supreme Court provides compensation for when the enjoyment of vacations at a later time is not possible for reasons beyond the worker's control:
In the event of dismissal or termination of the employment contract for legal reasons: any accrued but unused vacation time must be paid in the severance pay .
In contracts with Temporary Employment Agencies (ETT) for less than one year, vacations are usually paid if they have not been taken at the end of the employment relationship.
The worker has not enjoyed his/her vacation due to being in a situation of temporary disability (TD), and the employment relationship is terminated due to being declared in a situation of permanent disability (PD).
According to the doctrine of the Supreme Court, specifically the Supreme Court ruling of May 28, 2013 , the calculation of the statute of limitations for the worker to request financial compensation for unused vacations begins when the employment relationship is terminated ; until that moment, the period for exercising the action does not begin.
Worker in a situation of temporary disability
Initially, there was controversy regarding the conservation of holidays during situations of temporary disability, as we analyzed in the post “ Vacations and temporary disability .” Both the Court of Justice of the European Union and the Supreme Court recognize the conservation of the right to enjoy holidays when they coincide in whole or in part with temporary disability .