October 22, 2020

A judgment recognizes the right to cancel vacations if they coincide with the state of alarm



A ruling by the Social Court of Santander has recognized a worker from the Ministry of Education of the Government of Cantabria her right to cancel four days of vacation that he had requested because they coincided with the general confinement of the state of alarm and to replace them with another vacation period.

The ruling, which considers a demand of the UGT union section in the regional Executive, clarifies that the worker requested four days of vacation at the beginning of the year, from April 13 to 17, and that after decreeing the state of alarm that was prolonged Until June 21, he sent a WhatsApp on March 24 to cancel them for coinciding with the general confinement and requested it again on April 2.

The court ruling verbatimly asserts that if the worker “cannot leave her home due to forced confinement, it will not be a vacation. period with a legitimate and constitutional right to annual rest that every worker must have ».

The judgment compares the case with the situation generated by a temporary disability and clarifies that “when a worker falls into a situation of temporary disability before or during the enjoyment of the vacation, they retain the right to enjoy their vacation in a later period”, therefore that “it seems reasonable and logical that if you are affected by an act of force majeure that directly conditions your vacation, retain your right to enjoy it.”

«Obviously, all enjoyment of vacations entails the possibility that the worker can rest from the annual provision of services for a third party, that is, that he can move, leave his home, have his own leisure, visit relatives, play sports, etc. .. », adds the sentence.

In addition, it clarifies that, although the Government of Cantabria alleged in the trial that the center where the plaintiff works (a secondary school) had during the confinement “a minimal administrative activity” and that if she was not summoned to work it was because she was on vacation, «has no fault or responsibility that her vacation period coincided with a pandemic and, furthermore, it is found that already on March 24 the worker warned that her vacation period would coincide with confinement, a reminder that she reiterated on April 2; this procedure prevents classifying the applicant’s work attitude as malicious or fraudulent.

The union section of the UGT welcomes this ruling of the Social Court number 3 and emphasizes that «the state of alarm cannot be justified so that workers lose some labor rights contemplated in the collective agreement ”.

“During the state of alarm, measures have been taken that bordered on non-compliance, days have been established and schedules without prior negotiation with the works council and a multitude of labor disputes have been generated that cannot be justified just by the fact that they are experiencing a pandemic, “the union added in a press release.

UGT adds that these situations of labor conflict have even occurred in matters of family and work conciliation, where the MeCuida plan has not responded to a social need and its extension until January 31, 2021 without completing it with paid leave, it continues without giving a solution to care situations.

The union emphasizes that this ruling underlies the impossibility of teleworking for practically all the workforce of the Government of Cantabria, and stresses that the interpretation of vacations taken by the Ministry of Education “It doesn’t make any sense” when it coincides with a national closure of educational centers and with workers who were not given telework options.

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