The summer months are here, which is when employees at most companies take their vacations. In the current context created by the pandemic a shortage of work in many sectors and uncertainty over what will happen in the final months of the year are raising a stream of doubts over whether companies can take steps to alter this distribution of rest time, in an attempt to adapt to completely uncertain present and future circumstances.
Alongside these factors mainly affecting companies, there is also a need to consider the petitions of many employees who have openly expressed a wish to keep their vacation periods for a time when they have greater freedom of movement.
It has even been asked whether the time taken in recoverable paid leave may be treated as annual vacation, especially where the leave cannot be recovered before December 31.
In this landscape it needs to be analyzed whether employees can be required to take the whole of their vacation periods over the coming months or whether conversely it can be made compulsory for them to work and take their rest periods in later months when a lower workload is expected.
There are no specific rules on this subject, so we will have to start out from the general principles in the Workers’ Statute, namely:
- The annual paid vacation period shall be as specified in the collective labor agreement or the individual contract.
- The vacation calendar shall be established at each company.
- The period or periods in which it may be taken shall be established by mutual agreement between the employer and the worker, in accordance with whatever may be established in the collective labor agreements regarding annual vacation planning.
- The worker shall know the dates to which he or she is entitled at least two months before the vacation starts.
We find therefore that the main restriction to be considered for adopting measures is the existence, in a large majority of cases, of “collectively agreed” elements – either a collective labor agreement, or an annual calendar agreed with the workers’ statutory representatives, whether an internal policy or an established usual practice- which if altered by the employer could be interpreted as a material modification to working conditions. This means that companies are only able to take steps if they follow the procedures determined for these purposes in the law: a material modification or even opting out of the collective labor agreement, measures which require, as a general rule, specific time periods to be observed, the appropriate negotiations to be held with the workers’ statutory representatives and prior objective evidence to be provided of the economic, production-related, organizational or technical reasons requiring the change.
Moreover, in view of workers’ rights to know their vacation periods two months in advance, at this time of the year this could mean an additional restriction depending on the interests at stake.
In short, a potential modification of the vacation period affects a basic right which requires a considerable number of specific elements to be taken into account in each case and needing to be analyzed before any step its taken in this respect.
Garrigues Employment & Labor Law Department