The question raised relates to the possibility of financially compensating a temporary worker for unpaid leave in cases where the unpaid leave is due to a situation of temporary incapacity and the employment relationship has subsequently been terminated.

First of all, the legal framework for implementation must be analysed. It should be noted beforehand that the Joint Committee is responsible for the interpretation, monitoring, follow-up, study and application of what was agreed in the IV CUAGE, so it would be advisable to raise with it any doubts as to the interpretation of the article, 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 revised text of the Basic Status of Public Employees Act (TREBEP), states:

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

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

The IV CUAGE establishes the assumption that, if a holiday period is authorized, a situation of incapacity occurs, indicating:

“If, during the authorised holiday period, a situation of temporary incapacity occurs, the holiday period 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 the holidays, it stipulates in article 73: “(…) The staff whose contract expires during the course of the year shall have the right to enjoy the proportional part of the corresponding holidays, or the payment thereof in case they cannot enjoy them.”.

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

The jurisprudential evolution on the retention 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 takes the view that a worker has the right to enjoy her maternity leave and the holiday period in different periods when there has been a coincidence between the two.

Subsequently, in 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 laid down in national legislation and/or practice.”. 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 from doing so, even in the event that the temporary incapacity has been extended to the entire accrual period, and in the event that such holidays cannot be enjoyed because the employment relationship has ended, the worker has the right to financial compensation, which will be calculated on the basis of the ordinary remuneration of the same.

In Spain, despite the oscillating 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 leave, without being absolute in terms of the dates of its exercise, forms part of the inalienable core of the rights proper to 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 worker’s temporary incapacity on the right to paid leave 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 for sickness or accident, shall be counted as part of the effective period of service for the purpose of generating holidays (art. 5.4 of ILO Convention No. 132).

- The IV CUAGE and the Workers ' Statute (art. 48) regulate the right of workers to enjoy their holidays at a later date when they coincide in time with a temporary disability. 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 the event 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 hand, 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 budgets in fact set out above are not met, there will be no obligation to compensate financially for the holidays not enjoyed.

Without prejudice to the general criterion, however, and given that holidays are a right, even if it is not mandatory 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 shall have the right to enjoy the proportional part of the corresponding holidays, or the payment thereof in case they cannot enjoy them.”.

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

For all these reasons and according to the specific facts stated, 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 did not establish, after almost the entire period of accrual, the enjoyment of the same, even knowing the termination of the contract. Therefore, it is concluded that in the specific case it would be possible to compensate financially for the holidays not enjoyed.

All of the above is without prejudice to remember 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, do not have the character of a binding criterion, nor do they give rise to rights or expectations of law, nor do they imply any link with the type of procedures to which they refer. In addition, since they are not mandatory or binding, the bodies to which such replies are addressed may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The answers to queries contained in this bulletin deal with the issues raised in the light of the regulations in force at the time of their issuance, so that these answers may be affected by subsequent legislative changes or judicial resolutions.