Locked up at home, unable to visit another country or go to the beach, and worried about making ends meet. It is not the most appetizing picture for a vacation. However, this is the reality of many workers, in whose companies they have transformed the days of quarantine into days of “rest”. Labor presenteeism have a great weight in the Spanish job market and not all sectors have been able to adapt to telework. Before the state of alarm was decreed, the activity of the companies began to plummet. Part of the template was no longer needed and sent home with vacation awaiting government decisions. The incentive for these workers is that they would at least charge until an ERTE was applied in their company. Hundreds of employees accepted to avoid conflicts with their superiors or a possible dismissal. Now, they don’t know if it was the right decision or if they will be able to claim those days in the future. This practice is still ongoing and some companies still decide to use it to avoid ERTE. Joaquín C. Casanovas, labor lawyer, professor at the URJC and founder of Laboralclic.com, explains how workers should act in these cases.
Can you force me?
The answer is a definit no. “The general rule is that the company can never force you to enjoy a vacation on specific dates“Explains Casanovas. Still, there may be some kind of limitation in the agreement collective sector, company, or as agreed in the contract. “The collective agreement can determine that a part of the vacation must be enjoyed on certain dates determined by the company. For example, that of 30 days, 15 have to be enjoyed in the month of August and the rest are of personal choice ”, explains the labor lawyer. However, “it is practically impossible that the agreement or contract contemplates that the worker take the vacations at the moment in which the employer wants. Basically because it goes against the right of rest that the employee has for the work rendered ”, he adds.
What section of the law prohibits it?
Although there is no prohibition as such, the art. 38 of the Workers Statute establishes that the vacations are going to be enjoyed according to the agreement or what is agreed in the contract, which must be decided by mutual agreement between the parties involved.
If I refuse and threaten to fire me, what can I do?
You have the option of going to court and the Justice will prove the worker right. Joaquín C. Casanovas recommends that before reaching this point, the affected person have sufficient evidence. “If the company forces you, send in writing the requirement to take the holidaysAnd if he also threatens to fire you, let him also record it in writing, ”he advises. This step can already make the company rethink its decision, although if the dismissal finally becomes effective, “a judge will decide.” In such case, the worker must initiate a procedure in the Regulatory Law of Social Jurisdiction and the conflict will be resolved through a judicial process. If the threat and the Unfair dismissal, the employee must be readmitted to his post, in equal conditions and collecting the corresponding salary for the days not worked or, on the contrary, pay the appropriate severance pay.
The lawyer points out that, in a scenario in which the company has suggested to take vacation to collect until the ERTE is presented, the worker also “could initiate a quantity claim during one year period” Similarly, after initiating a process in the Regulatory Law of Social Jurisdiction, the company should argue why it has not been paid. “It is a very new situation and the casuistry is not well defined“Warns Casanovas. “It would be necessary to analyze the situation of each company. If the business kept running, the worker would have the right to collect those days, and the company would have to lose “, clarifies. If, on the contrary, “the company had to cease its activity completely due to force majeure, you may not have to pay days to the workers ”, he adds. In this case, the affected party could enter a judicial process that will cost him time and money without being able to recover the unpaid days.
Can I claim that vacation?
If in the end he decides to accept the holidays voluntarily out of fear, “those days could be challenged“Explains the lawyer. Beyond the current situation caused by Covid-19, this type of arbitrary changes and specific guidelines on the enjoyment of holidays can be claimed in the same way through the Regulatory Law. Of course, “it must be done in 20 days from the instruction. A past bull is more difficult to recover the days “, warns Casanovas.
What is the correct way for companies to act?
If teleworking cannot be used, companies must apply an ERTE. There is also the possibility of reducing or adapting the working day. There are cases where workers have had to take vacation with the argument that this will continue to be charged while the ERTE is effective. It is true that, in the event that the contract suspensions are due to objective causes (economic, technical, organizational and production) related to the Covid-19, the workers will receive the unemployment with retroactive effect since the company began to process the ERTE; not since the alarm state was declared, as occurs with ERTEs due to force majeure. To avoid the payment of those days in which the activity has declined and it is not necessary as many staff, companies carry out this illegal practice. “It is much more operational for companies that workers take voluntary vacations and not get into trouble. of quantity claim processes ”, concludes Casanovas.