Right to a vacation

What is the right to vacations?

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The vacation is the period of rest in which, despite not working, the worker continues to receive the salary that corresponds to him/her.

The vacations correspond to that person who has worked during the whole year and must enjoy them within the year in which they have been generated.

In relation to this, it is important to underline that it is neither possible to renounce, nor to reserve the dates for the following year, taking into account that, in case of doing so, such days of rest will be lost.

Likewise, it must also be taken into account that these dates may vary according to the Collective Bargaining Agreement to which the employee is subject.

The right to choose vacation is a right!

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Spanish Constitution – Article 40.2

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The Spanish Constitution itself, in its Article 40.2, guarantees the necessary rest:

«The public authorities shall promote a policy that guarantees professional training and retraining; they shall ensure safety and hygiene at work and guarantee the necessary rest, through the limitation of the working day, periodic paid vacations and the promotion of suitable centers«.

Articles in the Workers’ Statute

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Article 38: Annual leave

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Article 38 of the Workers’ Statute states that:

• The period of paid annual leave, not replaceable by financial compensation, shall be that agreed in the collective bargaining agreement or individual contract. In no case shall the duration be less than thirty calendar days.

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• The period or periods of its enjoyment shall be set by mutual agreement between the employer and the employee, in accordance with the provisions, if any, of the collective bargaining agreements on annual vacation planning.
  • In the event of disagreement between the parties, the social jurisdiction will set the date for the corresponding enjoyment and its decision will be non-appealable. The procedure shall be summary and preferential.
• The holiday schedulewill be set in each company. The employee must have knowledge of the dates that correspond to him/her at least two months before the beginning of the enjoyment.

Article 58.3: Can they take away vacation days?

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According to Article 58.3 of the Workers’ Statute, «penalties consisting in the reduction of the duration of the vacation or other reduction of the worker’s rights to rest or fine of having».Therefore, sanctions may not consist in reducing the rest period.

Demanding the company

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In the event of disagreement in setting the vacation, the employee may sue the employer and the social jurisdictionwill be in charge of signaling the corresponding date, its decision being non-appealable.

Law Regulating the Social Jurisdiction – Article 125

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Article 125 of the Law Regulating the Social Jurisdiction establishes the rules by which the procedure for the individual or plural fixation of the date of enjoyment of vacation shall be governed. Said rules are as follows:

• When the date is specified in a collective bargaining agreement, or by agreement between the employer and the representatives of the employees, or has been unilaterally set by the employer, the employee shall have a period of twenty days, from the date on which he/she becomes aware of such date, to file a claim in the Labor Court.
• When the date of enjoyment of the vacation is not indicated, the claim must be filed at least two months in advance of the date of enjoyment intended by the worker.
• If, once the proceeding has been initiated, the dates of enjoyment are fixed in accordance with the provisions of article 38 of the Consolidated Text of the Workers’ Statute Law, the continuation of the proceeding shall not be interrupted.
• When the subject matter of the debate concerns preferences attributed to certain workers, these shall also be claimed.

Before anything else, get informed

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Taking into consideration all of the above, it is very important to be clear about the possibilities available in relation to something as important and necessary as vacations are.

Lawyers at LAWYOU will help you.

At LAWYOU we have lawyers with many years of experience who can help you or provide you with more information about the currently applicable legislation and future changes.

Do not hesitate to contact us to tell us about your case through our email info@lawyoulegal.com or, if you prefer, you can also call us on 602 226 895.