The answer to this question depends on the regulation of the collective bargaining agreement and the company’s practice on scheduling weekly rests.

The setting of the right to rest of employees creates regular disputes and there are multiple judicial decisions that interpret differently the regulations of this right.

The labor courts start from the different legal nature of weekly days off and public holidays to perform their analyses.

  • Days off or weekly rest: these are days of work downtime, which ensure a better protection of the safety and health of employees, allowing them to recover from the fatigue caused by the exercise of work activity during the week, so that they can carry it out in better physical and psychological conditions (judgment of the High Court of Justice of the Basque Country of October 11, 2005).
  • Public holidays: these days are due to anniversaries or celebrations, which are considered as non-working days by the legislator for their proper commemoration (judgment of the High Court of Justice of Madrid of March 8, 2016).

In the context of this conflict, the High Court of Justice of Madrid, in its judgment of February 8, 2023, analyses whether, in the event that the weekly rest scheduled for certain employees coincides with a legal holiday, the right to benefit from an additional compensatory day off is generated or not.

This resolution examines the case of employees with a working time  from Monday to Sunday, who had been hired to provide services in stores in the Community of Madrid and enjoyed their weekly rest on a fixed day of the week other than Sunday, pre-established for each one in the working calendar of each year. The employees claimed that it be declared unlawful that the minimum weekly rest days could overlap with the annually established public holidays.

The High Court of Justice of Madrid, as it also did in a previous decision (judgment of July 18, 2022), dismiss the employee’ claim and bases its conclusion on the following grounds:

  • Public holidays is not a rest time intended for the recovery of health; the purpose of being a day off is that the employee may participate in a celebration of the community where he or she is integrated.
  • The social and cultural dimension of public holidays vanishes as these days not enjoyed on their date.
  • The right to participate in cultural and religious celebrations on public holidays is compatible with the rest due to health reasons, which represent the weekly rest days.
  • Article 37.2 of the Workers’ Statute rules the transfer to the following Monday of public holidays coinciding with a Sunday and not that of public holidays coinciding with other days on which the weekly rest must be enjoyed.

The Supreme Court has reached different conclusions based on the particularities of the cases analyzed. For example, in its judgment of November 2, 1999, it concluded that if a day of rest coincided with a public holiday, another day should be granted as compensation. It reached this interpretation because in this case the applicable collective bargaining agreement regulated the recovery of public holidays by establishing that “if the holiday coincides with the weekly day off, it will be made up on a different day and without any compensation being received”, so that it understood that the negotiators demanded the employees affected by the collective bargaining agreement can enjoy as many holidays as those that had been officially recognized as such.

And in its judgment of June 22, 2022, the Supreme Court ruled that, when the workforce does not have fixed days of the week established for weekly rest, if the company sets its provision of services in such a way that the weekly rest coincides with public holidays, it is entitled to enjoy its weekly rest without overlapping with working holidays,  compensating, where appropriate, for any overlapping assumptions.

This criterion is not contradictory to that of the judgment of the High Court of Justice of Madrid of February 8, 2023 cited above, since, in terms of the judgment itself, “in that case, the lack of predetermination sufficiently in advance of the weekly rest of the employees led the company to be able to manage its fixing so that it coincided with a public holiday. But in such a case the predetermination of the employees’ rest days allays such suspicion of fraudulent conduct, since we are dealing with a perfectly transparent and predictable working condition for the employee concerned”.

In view of the above, it would be legally feasible to argue that the overlap between the weekly rest day and the public holiday does not entitle the right to enjoy an additional day off, provided that (i) the collective bargaining agreement does not establish otherwise, and (ii) the rest days are predetermined and scheduled sufficiently in advance to discard any sign of fraud on the part of the company with regard to that overlap.

Xabier Solís

Garrigues Labor and Employment Law Department