The summer season is approaching and with it the vacation period of the majority of workers in our country begins. Conflicts over this matter are typical and habitual.

Summer vacations are one of the most important rights of workers and are regulated by the Workers' Statute. In this circular, we will cover key aspects of the duration, application, compensation and other frequently asked questions related to the summer vacation.

Holiday request procedure

The vacation request procedure depends on the company or organization, the most common being that said procedure appears in the company Regulations. Failing that, it will be the company that informs, either ex officio or at the request of the worker, the procedure that he must follow to request his vacations.

As a general rule, a mechanism must be established to communicate the vacation request between the worker and the company, as well as the notice periods. For example, it is common in many companies to provide at the beginning of the year the work calendar by which the company is governed with working days and holidays, as well as the vacation periods and shifts available so that workers can plan and choose in advance their vacation.

The period or periods of their enjoyment will be set by mutual agreement between the employer and the worker, in accordance with what is established in their case in the collective agreements on annual vacation planning.

Attention. Vacations must be taken, unless the Collective Agreement says otherwise, within the year in which they are generated, and they are lost if they have not been taken.

Holiday calendar: it will be fixed in each company. The worker will know the dates that correspond to him 2 months before, at least, the beginning of the enjoyment. Unless the Collective Agreement establishes a longer term.

It is convenient that vacations be granted in writing, to avoid problems and that the company can proceed with a disciplinary dismissal for abandoning the job and that there is no proof that the vacation period is being enjoyed.

In case of disagreement between the parties, you must go to the competent courts that will set the date that corresponds to the enjoyment and their decision will be final.

If more than 20 business days have passed since the vacation schedule was notified, the worker no longer has the right to modify the dates of enjoyment.

If you did not individually notify the periods of enjoyment (you are not obliged to do so), the 20-day period will be calculated from the time the vacation schedule was published on the bulletin board of the workplace where the worker provides his services.

Attention. As a general rule, collective agreements set the number of vacations in calendar and business days, the general rule is 30 calendar days and 23 business days. It will be necessary to attend to what is established by each agreement and individual work contract with respect to this point.

Holiday duration

The paid annual vacation period, which cannot be replaced by economic compensation, will be the one agreed in the collective agreement or individual contract. In no case will the duration be less than thirty calendar days. That is, 2.5 days per month worked, including Sundays and holidays. In addition to being able to be enjoyed from January 1 to December 31, it is possible to divide it into parts, as long as one of them lasts more than two weeks.

In general, and unless the applicable Collective Agreement establishes otherwise, the rules relating to the enjoyment of vacations, as established by the Workers' Statute, will be the following:

• Each worker, regardless of whether he provides his services full-time or part-time, has the right to 30 calendar days of vacation, or what is the same, 2.5 calendar days per month worked, including Sundays and holidays, and that They must enjoy, as a general rule, from January 1 to December 31 of each year.
• Workers who remain in the company for at least a full year will be entitled to 30 calendar days of vacation, while those who have a temporary contract of less than one year will enjoy the vacation days that correspond to them according to the days worked (for example, if your contract is for 2 months you will be entitled to 5 days of vacation).
• The vacation period cannot start on a holiday or non-working day and that non-working days will not count as rest time. In addition, they can be enjoyed in different periods, although one of them must cover a minimum period of two weeks.
• Vacations must be taken, and cannot be financially replaced, unless the contract has ended and the worker has vacation days remaining, in which case those days not taken will be financially compensated.
• The period of enjoyment is from January 1 to December 31, so if the worker does not enjoy his vacation in that time he will lose that right, unless the company establishes otherwise.

It should be noted that this is regulated by the Workers' Statute, but each company must regulate the system and conditions for choosing vacations that may or may not coincide with what is established in the Statute.

Can vacations be paid for instead of enjoying them?

As a general rule no. It must be known that this duration cannot be replaced economically, nor can it be accumulated. The same does not happen in the case of termination of the contract; Well, in this situation, if the employee has not been able to enjoy his vacation, he does have the right to financial compensation equivalent to the period that would correspond to him.

In the case of contracts by Temporary Employment Agencies (ETT) for a duration of less than one year, vacations are usually paid at the end of the employment relationship if they have not been taken.

And in the case of a part-time contract?

You have the right to the same vacations as full-time workers. The difference is that the part-time worker will receive the salary corresponding to this part-time during the holidays, which is lower than the salary of the full-time worker.

Coincidence with temporary disability

Another great source of concern for companies is the coincidence of the vacation period with a temporary disability.

The general rule is that established by the Workers' Statute, by virtue of which the worker is recognized, in the event that the period of disability is derived from pregnancy, childbirth or breastfeeding, the possibility of enjoying them on a different date , even if the calendar year to which they correspond has ended.

In the case of temporary disabilities derived from other contingencies, the worker may enjoy vacations on a different date, provided that no more than 18 months have elapsed from the end of the year in which they originated.

In the event that the worker is in a period of temporary disability that later results in a recognition of permanent disability, the unused vacations will be paid monetarily, they are also paid in this way when the worker is retired due to permanent disability .

And in case of unemployment?

When a worker is fired, and has not taken all the vacations, the company will proceed to pay them for the unused vacations, and to quote for those days. Therefore, at the end of the contract, they maintain unused vacation days, they will continue to be registered and quoted on those days.

Due to this fact, the 15-day period to request the benefit or the unemployment subsidy begins to count at the moment in which those unused vacations run out.

Once you are unemployed, registered as a job seeker and receiving the benefit or subsidy, you do not have a right like workers to paid vacations.

Can they expire?

Yes. In the event that one of the workers does not enjoy all the vacation days for other reasons (for example, because they had a couple of days left and they thought they could transfer them to the following year), now they will not be able to demand their enjoyment .

In general, vacations must be taken within the calendar year in which they accrue, so the right to take them expires on December 31 of each year. Therefore, unless otherwise agreed, the worker will have lost the right to enjoy the pending days, and the employer must not compensate him financially for those days not enjoyed.

However, the labor regulations include certain objective exceptions that allow the worker not to lose vacations, even if they are not taken in the calendar year in which they are generated, such as if the worker is in a situation of temporary disability or enjoying maternity or paternity leave.

On the other hand, we must also bear in mind that the jurisprudence of the Court of the European Union considers that, unless the company proves that it has offered vacations to the worker, these should not expire if they are claimed, without prejudice to the one-year term that exists. statute of limitations for any quantity claim.

How are vacations paid?

Labor regulations stipulate that annual vacations must be paid and their duration coincides with the worker's usual salary, provided he works full time.

Vacations have to be paid the same as the rest of the months, except if there are concepts inherent to occupying the job. For example, the transportation bonus, which is paid to offset the expenses that the worker has to go to work, but if he does not go to work for a month due to being on vacation, that bonus will not be paid.

The general criterion is the consideration of salary and non-salary bonuses. The Supreme Court has ruled on this in its Judgment 320/2019, of April 23, considering that the attendance bonuses, night shifts and festivities and Sundays are true salary bonuses that must be paid during the vacation period, the High Court considers that it should be considered for the purposes of vacations, the remuneration received for six or more months preceding the vacations- or the proportional part if the period of provision of services was less-.

The Court literally upholds «Let us reiterate what we have been stating on previous occasions: if a supplement is received for activity that is carried out on a regular basis, it constitutes ordinary remuneration and, consequently, it must be included in the calculation of vacation remuneration; only if we are dealing with a supplement accrued for activity that is carried out on a timely basis, it is classified as extraordinary remuneration and must not be taken into account to set the amount of vacation remuneration”.

In short, during the vacation the person who enjoys it must be placed, in salary terms, as if he were carrying out his activity.

In fixed-term contracts, both the amount and the duration will be proportional to the period worked. The same is not the case with part-time, as we have already mentioned before. In this type of contract, you will be entitled, like the rest, to a minimum of 30 calendar days, but the amount must be proportional to the hours worked.

If the salary of your employees is made up, on the one hand, fixed and a variable, you must include in the vacation payroll an average of the variable concepts that you have been paying them.

Yes, it has been days. Vacations accrue proportionally to the time worked, so they can be reduced in case of absences. However, not all absences allow you to reduce them. For example: you can reduce vacations in case of unjustified absences, or if the affected person has been on leave or has had the contract suspended from employment and salary for disciplinary reasons, but you cannot do so in case of leave or in a maternity situation or paternity, nor for enjoying paid leave.

Yes, he changed his day. If a worker has had different coefficients of hours during the year (for example, half a year full-time and half a part-time), he cannot reduce the length of his vacations. But he can adjust the salary for the month of vacation to the percentage of hours accrued throughout the year