Comparto sanità, le ferie si perdono ? Corte Europea

Brief reading of a judgment from a few months ago. At the end of the reading, we have attached the link if you want to view the judgment yourself.

Let's start by saying that every worker in the European Community is entitled to weekly rest and paid annual leave, the periods of which must be increasingly close together, in order to achieve progress, in accordance with national practices.

All workers should have adequate rest periods. The concept of "rest" must be expressed in units of time, that is, in days, hours, and fractions of an hour. [Union] workers must benefit from minimum periods of daily, weekly, and annual rest and adequate break periods.

Member States shall take the necessary measures to ensure that every worker benefits from paid annual leaveof at least 4 weeks, according to the conditions for obtaining and granting provided for by national legislation and/or practice (Art. 7 Directive 2003/88).

The minimum period of paid annual leave cannot be replaced by a financial allowance, except in the case of termination of the employment relationship" (Art. 7 Directive 2003/88).

Article 17 of Directive 2003/88 provides that Member States may derogate from certain provisions of the latter. However, no derogation is allowed with regard to Article 7 thereof.

The worker must in fact be considered the weaker party in the employment relationship, so it is necessary to prevent the employer from having the power to impose a restriction on his rights. Given this situation of weakness, such a worker may be discouraged from expressly asserting his rights against his employer, since, in particular, their claim could expose him to measures taken by the latter that could affect the employment relationship to the detriment of the worker.

Furthermore, incentives to waive holidays as a period of rest or to encourage workers to waive them are incompatible with the objectives of the right to paid annual leave, as recalled in points 32 and 33 of this judgment and specifically linked to the need to ensure that the worker benefits from actual rest, to ensure effective protection of his safety and health.

If, on the other hand, the employer is able to fulfill the burden of proof incumbent on him in this regard, and it is therefore found that the worker, deliberately and with full knowledge of the consequences that would result, refrained from taking paid annual leave after being put in a position to effectively exercise his right to it, Article 7, paragraphs 1 and 2, of Directive 2003/88 does not preclude the loss of that right nor, in the event of termination of the employment relationship, the related lack of a financial allowance for
unused paid annual leave.

Therefore, a worker cannot automatically lose the rights to accrued paid annual leave because he did not request the leave, but he could lose them if the employer has repeatedly tried to get him to take them.

Parisi Vincenzo