Employement – Holiday Entitlement
A holiday entitlement is a fixed
period in which employees rest and enjoy themselves instead of working, despite
the fact they continue being paid.
The concept of holiday was born in the modern period, after long and violent political struggles between employers and trade union associations. Its grounds are i) each worker's need for rest ii) the importance of regenerating mental and physical energy by abstaining from work for a period longer than a weekend.
European Directive n. 88/2003, article 7, states that any European worker is entitled to use a paid holiday period of four weeks per year, in compliance with the national legislation of each country. The Directive also states that the holiday entitlement cannot be waived or commuted with a monetary compensation, unless the employment contractis terminated.
The application and interpretation
of the European Directive n. 88/2003 isfundamental to updating the abovementioned
principles with new changes in the employment relationship.
For example, with Judgement no. C-118/14, the European Court of Justice established that when a worker dies before the ending of the working contract and has not used all his or her holiday entitlement, the right toreceive monetary compensation is transmitted to the heirs. The more recent Judgement, C-916/16, pointed out thatthe entitlement cannot be considered as waived if the employee did not ask his or her boss to use the holiday period during the employment relationship.
Focusing on Italian legislation,itshould
be remembered that the holiday entitlement is considered as a primary principleinarticle
36 of Italian constitution, which also affirms that holiday periods are paid
and that no worker can waive it. However,
according to art. 2109 of the Italian civil code, which regulatesworkers’ right
to rest, the employer can decide when the employee can use the holiday period (e.g.not
necessarily in Summer!).
Nevertheless, the decision of when employeescan
take theirholidays must be consistent with theirneeds and company purposes,
also governedbyItalian law n. 66/2003: half of the holiday period has tobe enjoyed
in the year it comes to fruition, it should beongoing and at least two weeks
long.
The remaining part can be used
during the 18 months following the end of the year of accrual.
The worker can ask his or her employer to enjoytheholiday period ata particular time of the year, but this request should be made in advance in order to let the company get organized.
As has already been stated, the holiday entitlementcan never be waived by the employee,except in two cases:
1) according to article 24 of Italian law n. 151/2015, the employee can agree not to use the holiday periodby transferring it to a colleague who needs more time to assist a relative in the case of illness or disability. In this case, the right to take the holiday is not considered as waived but only transferred from a worker to another;
2) when the employment contractcomes to end, and the employee has not yet entirely used all his/her holiday entitlement, the accumulated unused days are converted into monetary compensation. For this reason, in the case of a fixed-term contract it is common practice that, before the end of the working relationship, the companyshould check the remaining holiday time of each worker, and make them use it before the end of the contract.
To conclude, it has to be
recommended that each company paysclose attention to the regular use of the
holiday period by its employees in the course of the employment relationship,
especially those who have high seniority, in order to avoid the needto pay huge
monetary compensation or compensatory damages once the employment relationship is
terminated.
Edoardo
Piccione