The right to vacation is regulated in article 40.2 of the Spanish Constitution: "the public authorities (...) will guarantee the necessary rest, by limiting the working day, and periodic paid vacations."
In the Workers' Statute it is regulated in article 38 ; at European level it appears in article 7 of Directive 2003/88/CEE and at international level in Convention 132 on paid holidays of the ILO ratified by Spain in 1970.
Right to an annual rest period.
That this period be paid by the employer.
According to section 1 of article 38 ET, every worker has the chinese overseas europe database right to 30 days of paid vacation per year.
Problems with holidays and temporary disability
Article 38.3 of the Workers' Statute in its second and third paragraphs refers to temporary disability and the enjoyment of vacations.
Case law has been moderate regarding the conservation of vacations during situations of temporary disability. Initially, a distinction was made between maternity leave and leave caused by illness or accident, recognizing the right to enjoy vacations only for the former.
The ruling of the Court of Justice of the European Union of 20/01/2009 (Case C-350/2006 and 520/2006, Shultz Hoff) marked a turning point in this matter. It recognised in a generic way the enjoyment of holidays for both maternity leave and sick leave or accident. The interpretation favours the preservation of the right to enjoy holidays when they coincide in whole or in part with temporary disability.
The European Court's ruling states: the worker has the right to enjoy his or her holidays during a period other than his or her sick leave, when he or she would not have been able to enjoy them during the sick leave.
At the national level, the Supreme Court ruling of 3 October 2012, which follows the interpretation of the European Court, is very important.
Supreme Court Interpretation
The issue under discussion is the overlapping of vacation with temporary disability , in this case due to common illness.
Temporary disability causes the suspension of the employment contract and therefore, the suspension exonerates the reciprocal obligations of working and remunerating the work (article 45 ET)
Therefore, it must be understood that the right to enjoy vacations is suspended. The situation of temporary incapacity suspends the employment contract regardless of whether the worker is working or on vacation at the time of the temporary incapacity situation. If this were not the case, days in which the contract is suspended would be counted as vacation.
The Court, following the line of the CJEU, recognises the right to enjoy holidays after temporary disability, if this occurred before the holiday period or the enjoyment of the remaining time of the holiday, when the temporary disability arose during the holiday.
The ruling also states that treating situations of concurrent vacations and temporary disability differently, depending on the start of the IT, could only be justified when the leave was not in accordance with the law or there were indications of fraud.
Current legislation
Following the rulings of the Court of Justice of the European Union and the Supreme Court, the 2012 labour reform introduces a third paragraph in article 38.3 of the Workers' Statute.
Article 38.3 ET: In the event that the vacation period coincides with a temporary disability due to contingencies other than those indicated in the previous paragraph that prevent the worker from enjoying them, totally or partially, during the calendar year to which they correspond, the worker may do so once his or her disability ends and provided that no more than eighteen months have passed from the end of the year in which they originated.