Claiming holidays not taken by the worker

The High Court of Justice of Madrid declares the right of a worker to be compensated for holidays beyond the last year of work.

The judges of the Chamber of the Madrid High Court of Justice in the judgment handed down on 25/11/2022 no. 1020/22 in Appeal 1015/2022, consider that the right to paid annual leave established in art. 38.1 of the Workers’ Statute cannot be interpreted in a restrictive manner, sharing the criteria of the European Courts.

In his claim before the labour court, the worker claimed the right to receive financial compensation for the holidays in 2019 and 2020 that he was unable to take.

The court of first instance recognised the right to receive the 2020 holidays but not the 2019 holidays, on the basis of art. 38.1 of the ET, in the sense that the enjoyment of the same cannot be replaced by any amount and because the worker did not request it.

As the European Courts have been applying in some of their judgments, the employer must ensure in a concrete and transparent manner that the staff can effectively enjoy their paid annual leave and if this is not the case and does not allow a worker to exercise their right to paid annual leave, they must assume the consequences, since not doing so would be accepting a behaviour that would give rise to unjust enrichment of the employer contrary to preserving the health of the worker.

In the case dealt with in the judgment handed down by the Madrid Supreme Court, there are also other circumstances, such as the fact that the worker was affected by an ERTE and after its termination was dismissed immediately, so that he was deprived of the enjoyment of his holidays.

Consequently, the two circumstances for circumventing the annual limitation period established in art. 38.1 of the ET are present, i.e. the employer’s fault and the failure to inform the worker of his possible loss of holidays and not offering him any alternative to this situation.

As the SCJ states, and in line with European case law, when the employer does not comply with this duty to inform, the statute of limitations of art. 59 of the ET does not apply and the way remains open for claiming holidays beyond the last year of work.