CAN I CLAIM MY UNUSED PAID VACATIONS?

Lawyou — jueves, 25 de febrero de 2021

Where does the right of workers to have vacation time

The Article 38 of the Workers’ Statute (ET) establishes the bases of the regulation relating to annual leave corresponding to workers. In this regard, the first paragraph of the aforementioned article states that the period of paid annual leave for each worker shall be agreed upon by collective bargaining agreement or individual contract. In addition, this same paragraph indicates that this period may not be less than thirty calendar days for each year worked and which is not replaceable by financial compensation.

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Despite the fact that the ET establishes vacations per year, in the event that an employee has worked less than one year will also have vacation entitlement. However, vacation days shall be calculated proportionally to the months worked, such that for each month worked an employee shall be entitled to 2.5 days of paid vacation.

It is noteworthy that the Workers’ Statute establishes a minimum regulation. Therefore, the aforementioned conditions can always be improved through a collective bargaining agreement or an individual contract with the worker. Agreements and contracts may in no case worsen the conditions established by the Statute.

What has the CJEU said about paid leave

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The Court of Justice of the European Union (CJEU) has ruled on two questions referred by two German courts concerning two workers who were denied financial compensation for vacation days not taken.

the fact that an employee does not enjoy his paid vacation, because he has not requested it, does not entail the automatic loss of his right to the same. In addition, it will not entail the loss of the economic compensation in the cases in which your contract is terminated without you having enjoyed said vacation.

Despite the fact that the right to paid annual leave is not automatically extinguished, it is true that, according to the European court, there is a possibility that this right and its corresponding financial compensation may be denied. This will occur in cases where the employer can prove that the worker in question deliberately and with full knowledge did not want to have vacation. It is thus pursued that the worker refuses to enjoy the vacations seeking to be economically compensated since the vacations are a right and a duty of the worker, being its purpose the health and rest of the worker.

The CJEU also establishes that the sentence shall apply to both public employers and private employers.

What happens if the worker dies?

In another judgment the CJEU ruled that the death of a worker does not extinguish his right to paid annual leave. Therefore, it points out the possibility for the heirs of a deceased worker to claimfinancial compensationcorresponding to paid annual leave not taken by the deceased.

How can I claim vacation?

Vacations that can be claimed are those of the current year. Therefore, they will have to be claimed before December 31 of each year.

If you as an employee have not enjoyed your vacation, you must follow the following steps:

  1. Request vacation from your company.

  2. If your company refuses to give them to you, you can file a lawsuitbefore the Social Court within 20 days from your request.

If you are in this situation and want to know more about whether (and how) you are entitled to claim paid annual leave that you are entitled to, but have not taken, or that of a deceased family member it is essential that you contact an attorney so that he/she can advice appropriately.

Lawyers at LAWYOU, will help you

At LAWYOU we have lawyers with many years of experiencehelp you with your claim or bring you more informationabout the legislation currently applicable to these cases. Feel free to get in touch contact us to tell us about your case through our email info@lawyoulegal.com or, if you prefer, you can also call us at. 602 226 895.

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