This post, based on the article by Marina Valero from Linkedin News, brings together the knowledge of three experts to clarify the most frequent doubts at this time of year: labor lawyer Pere Vidal, labor relations expert Raquel de la Viña and labor law professor at the Universitat Jaume I in Castellón, Francisco Trujillo.
The dates of the holidays must be the result of an agreement between the company and the employees, always taking as a reference the applicable collective agreements. "In any case, workers must know the dates that correspond to them two months before the start of the holidays," clarifies De la Viña, a lawyer expert in labor relations. It would be necessary to look at each case, but it is common to find agreements where the workplace closes in August or rotation systems, request dates or specific periods in which to enjoy the days off are established.
It is important to know that the decision to take a vacation or to be absent from work unilaterally should not be made, even if the absence is considered justified, as it may result in a disciplinary dismissal without the right to any compensation.
If the workers do not make their express request, the company can assign the vacation unilaterally. In the event that there are discrepancies between a professional and their employer, there is a specific procedure to set the definitive date, for which there is a period of 20 working days from the person becoming aware of the set date. The hearing is scheduled within five days of the filing of the claim, and the sentence is issued within three days.
Vacation days cannot be compensated for with money. "Such a prohibition implies the nullity of any collective or individual agreement to replace vacations with a cash amount," clarifies Professor Trujillo. However, when the employment relationship ends, the company must include the amount of vacation days not taken in the settlement.
In cases of temporary incapacity resulting from pregnancy, childbirth or breastfeeding and maternity or paternity leave, professionals have the right to enjoy the days off on a different date. This situation extends to cases of adoption or foster care, recalls Trujillo. And if a person falls ill in the middle of the vacation? They will not lose them. They have the right to enjoy them once their incapacity ends, as long as no more than 18 months have passed since the end of the year in which they were accrued, clarifies Vidal.
As a general rule, there cannot be changes less than two months in advance to the vacation dates. If the company violates this maxim, the affected workers are entitled to receive financial compensation for damages (normally quantified as one day's salary per day of vacation not taken on the agreed date), explains Pere Vidal. Possible modifications to dates can only be made by agreement between the parties or in the event that there are substantial organizational or productive causes, adds De La Viña
Workers with a fixed, intermittent contract will enjoy a vacation period proportional to the time worked, and if this is not the case, the company must offer monetary compensation, points out De la Viña.
In the distribution of vacations, certain factors can be taken into account as long as they are not discriminatory: personal or family circumstances, work regime in the company, customer or supplier calendars, demands of the productive sector, illnesses or contractual suspensions, etc.
If there are several workers with school-age children who want the same dates, preference will be given to the one with the most seniority in the company, or if the seniority of both is the same, to the one who is the oldest, maintains the labor lawyer.