Writted by Lourdes Guivernau Aguadé, Attorney-at-law
Edited and proofread by Yi-Ting Lin
Annual vacations for workers in Spain are regulated in article 38 of the Workers' Statute, in collective agreements and in employment contracts. The right to vacation is a worker's right to have paid days of rest proportional to the annual days worked by the worker.
The employee and the employer must agree on the dates on which the vacations are to be enjoyed, and it is not possible to exchange these for monetary compensation, regardless of whether the employee provides full-time or part-time services. The employee is entitled to 30 calendar days of vacation, or 2.5 calendar days per month worked, including Sundays and holidays, to be enjoyed, as a general rule, from January 1 to December 31 of the same year.
Article 38 Workers' Statute, Annual vacations.
The period of paid annual leave, not replaceable by monetary compensation, will be that agreed upon in a collective agreement or individual contract. In no case will the duration be less than thirty calendar days.
The period of the holiday will be fixed 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 case of disagreement between the parties, the competent jurisdiction will set the date for the corresponding enjoyment and its decision will not be subject to appeal. The procedure shall be summary and preferential.
The vacation schedule shall be fixed in each company. The worker will know the dates that correspond to him/her at least two months before the beginning of the enjoyment. When the vacation period fixed in the vacation calendar of the company referred to in ITEM 3 coincides in time with a temporary disability resulting from pregnancy, childbirth or breastfeeding or with the period of suspension of the employment contract provided for in Article 48. 4 of this Law, the employee shall be entitled to enjoy the vacation on a date other than the date of the temporary disability or the date of the leave that by application of said precept corresponds to him/her, at the end of the suspension period, even if the calendar year to which they correspond has ended.
The three most important points of the legal regulation of vacations are the following:
1.- The annual vacation period cannot be replaced by financial compensation. Article 38 of the workers' statute requires that their vacations must be enjoyed and not compensated with money.
As is understood, it is a period of work rest that is necessary and recognized by law. It is also a prohibition that cannot be avoided by agreement of the parties, in the employment contract, or by collective agreement, and, of course, the company cannot impose it on the employee either.
However, there are some exceptions. The exception is the termination of the employment contract before taking vacations. In this case, financial compensation equivalent to the vacation period not enjoyed by the worker must be included in the corresponding settlement. That is, the worker must be paid as many days of salary as the number of untaken vacation days corresponding to him/her. This amount is subject to Social Security contributions and is included in the unemployment contribution base.
2.-. Duration of vacations: The duration of vacations can be agreed in the employment contract or in the corresponding collective agreement, although it will never be less than the 30 calendar days established by the Workers' Statute. That is, agreements regarding vacations may extend their duration, but not reduce it with respect to the established legal minimum.
And at this point it is necessary to clarify another question that generates many doubts. The duration of the vacation is legally fixed with reference to the year, therefore, if a worker has not worked throughout the year, he will only be entitled to the proportional part corresponding to the period worked. This is fully applicable to fixed-term contracts in which, and unless the applicable collective agreement establishes a different regulation, the vacation period will be proportional to the period of time worked.
This should not be confused with the application of the vacation regime to part-time contracts or in cases of reduced working hours. We say this because it is quite common for companies to interpret that, if a worker is hired to work less hours, for example 4 hours per work day instead of the usual 8 hours, he or she should be assigned half the number of days of vacation. This is obviously not the case, because article 38 of the ET is clear in stating that the minimum duration of the vacation is 30 calendar days. Evan though the remuneration for those days is paid in proportion to the half day worked, the number of days of vacation enjoyment can never be reduced.
3.- Of the specific dates for enjoying vacations: the company and the worker must establish by common agreement these periods of enjoying vacations, and to do so, what is established in the collective agreement applicable at all times will be taken into account. The start date of the vacation must be known at least two months in advance of the start of the vacation.
It may be that the collective agreement establishes a longer period for reporting vacation dates, which should be the one that will apply then.
If no agreement is reached between both parties, they may go to the labor court, through an urgent and specific procedure for this purpose, in order to resolve and fix the period of enjoyment of the vacations; such judicial resolution on vacation will not be subject to appeal.
In general, vacations must be taken within the year to which they correspond. According to the courts, if vacations are not taken before December 31, the right to take them expires because it is not possible to carry them to the following year.
The beginning of the vacations cannot take place on a public holiday or non-working day, it must be a working day.
Likewise, and as regards the calculation of the vacation period, the courts have indicated that the calculation of non-working days within the vacation period will depend on whether its duration is set in calendar days or business days.
If it is set in calendar days, holidays will be counted for the purpose of vacation duration, and if business days are set, they will not be counted.
About the Author:
Me Lourdes GUIVERNAU, obtained a law degree in the University of Lleida (Spain) in 1993. She also holds a Master in International trade and a Master in Sports Law. She joined the Tarragona Bar in 1995.
She works in international private and family law and deals with all issues related to banking law, company law, sports law, real estate law and criminal law in Spain.
She works in Spanish and English.
Ms. Guivernau is also president of the Sports Law Commission of the Tarragona Bar Association and is one of the professors of the Master of Access to Law practice at the Rovira i Virgili University of Tarragona.
Her website: https://lancelot-lawyers.com/team/lourdes-guivernau/