Payment of holidays not enjoyed by temporary staff due to being in a situation of temporary incapacity

The question raised is about the possibility of financially compensating the holidays not enjoyed by a temporary worker in those cases in which the non-enjoyment is due to a situation of temporary incapacity and that subsequently the employment relationship has been extinguished.

In the first place, the legal framework for implementation must be analysed. In advance, it should be noted that the competent body for the interpretation, monitoring, follow-up, study and application of what was agreed in the IV CUAGE is the Joint Commission, so it would be advisable to raise with it any doubt of interpretation of the articles, if so considered.

With regard to the legal regime applicable to these personnel, article 7 of Royal Legislative Decree 5/2015, of 30 October, approving the consolidated text of the Law on the Basic Status of Public Employees (TREBEP), establishes:

“Labour personnel in the service of public administrations are governed, in addition to labour legislation and other conventionally applicable rules, by the precepts of this Statute that so provide.”

Thus, the application of the TREBEP to labor personnel will take place when a specific precept of the said rule expressly includes such personnel, governed in the rest by the Collective Agreement of application, as well as by the remaining labor legislation. Without any indication to the contrary, it is understood that the IV Single Collective Agreement for Labour Personnel of the General State Administration (IV CUAGE) is applicable.

The IV CUAGE establishes the assumption that, authorized a period of vacation, a situation of disability occurs, indicating:

“If, during the period of authorised leave, a situation of temporary incapacity arises, the period of leave shall be interrupted and may be enjoyed once the temporary incapacity ends, and provided that no more than eighteen months have elapsed since the end of the year in which they originated”.

For its part, and with regard to the termination of the contract and holidays, it provides in its article 73: “(…) The staff whose contract expires during the course of the year will be entitled to enjoy the proportional part of holidays corresponding to them, or to pay for them in case they cannot enjoy them”.

Taking into account the above, the first issue to be analyzed is that it happens with the annual paid holidays that could not be enjoyed because of being in a situation of temporary disability.

The jurisprudential evolution on the preservation or loss of the holiday period during the situations of temporary incapacity leave begins, with the judgment of the Court of Justice of the European Union of 18/03/2004 (Case C-342/2001, Merino Gómez). In that judgment, the Community Court considers that a female worker has the right to take maternity leave and leave at different times when there has been a coincidence between the two.

Subsequently, in the judgment of 20/01/2009, Shultz-Hoff case, the Court interprets two Community directives (Dir. 2003/88/EC and Dir. 93/104/EC) providing that: “1. Member States shall take the necessary measures to ensure that all workers have a period of at least four weeks of paid annual leave, in accordance with the conditions for obtaining and granting paid annual leave laid down in national laws and/or practices.”. In this case the Court understands that the worker has the right to enjoy the holidays if he has been in a situation of temporary incapacity that has prevented him, even in the case that the temporary incapacity has been extended to the entire period of accrual, and in case that such holidays cannot be enjoyed because the employment relationship has ended, the worker has the right to financial compensation, which will be calculated based on the ordinary remuneration of the same.

In Spain, despite the fluctuating jurisprudence, since 2012 the Supreme Court has recognized, following the interpretation of the Court of Justice of the European Union, the right to enjoy holidays when they coincide in whole or in part with a period of temporary incapacity.

It is thus considered that the principle relating to the enjoyment of paid annual holidays, without being absolute in terms of the dates of its exercise, forms part of the inalienable core of the rights of a Social State and must interpret our internal legal system, while Article 40.2 of the Spanish Constitution is among the guiding principles of social and economic policy, which obliges us to bear this in mind in this interpretation.

The effects of the temporary incapacity of the worker on the right to paid holidays can be summarized in the following points:

- During periods of temporary incapacity, the right to vacation continues to accrue. Absence from work for reasons independent of the will of the person concerned, such as temporary incapacity due to illness or accident, shall be counted as part of the period of effective service for the purpose of generating holidays (Article 5.4 of ILO Convention No. 132).

- The IV CUAGE and the Workers ' Statute (article 48) regulate the right of workers to enjoy their holidays at a later date when they coincide in time with a temporary incapacity. They must be enjoyed within 18 months of the end of the year in which they were generated.

It follows that, the possibility of subsequent enjoyment of holidays in case of IT requires that de facto budgets be given: on the one hand, the prior fixing of the holiday period (either individually or collectively) and, on the other, that the situation of temporary incapacity arises prior to it and prevents the enjoyment of such annual vacation.

Once the applicable legal regime has been indicated, it is reported that, as a general rule, if the aforementioned factual budgets are not met, there will be no obligation to financially compensate the holidays not enjoyed.

Without prejudice to the general criterion, however, and given that holidays constitute a right, even if it is not obligatory for it to be exhausted, we must take into account the specific facts that are the subject of the consultation, insofar as they are temporary staff. Specifically, an employee whose employment relationship has ended.

Article 73 of the IV CUAGE states: “(…) The staff whose contract expires during the course of the year will be entitled to enjoy the proportional part of holidays corresponding to them, or to pay for them in case they cannot enjoy them”.

In this case, the employee did not previously request holidays and that as a result of being in temporary incapacity until the termination of the contract, he did not have the possibility to enjoy them. Likewise, and as stated in the letter by the consulting body, there was no work calendar or instructions on the enjoyment of holidays, nor was a mechanism established for these staff to enjoy their holidays.

For all the above reasons and according to the specific facts raised, it is reported that, on the one hand, the holidays were not enjoyed, because the employee himself did not request them; and on the other, because the Administration also did not determine, after almost the entire period of accrual, the enjoyment of the same, even knowing the completion of the contract. Therefore, it is concluded that in the specific case would be possible the financial compensation of the holidays not enjoyed.

All of the foregoing is without prejudice to recalling that, according to the regime of competences of this management center, the answers to queries issued by this general directorate are merely informative and, consequently, are not of a binding criterion, nor do they give rise to rights or expectations of law, nor imply any link with the type of procedures to which they refer. Furthermore, in the absence of a mandatory or binding nature, the bodies receiving such replies may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The responses to queries contained in this bulletin address the issues raised in the light of the regulations in force at the time of their issuance, so that such responses may be affected by subsequent legislative changes or judicial decisions.