By Emanuela Nespoli, Firm: Toffoletto De Luca Tamajo e Soci
Florence Riquoir, Firm: capstan
Richard Lister, Firm: Lewis Silkin LLP
Gisella Alvarado, Firm: Sagardoy Abogados
Danielle Van Katwyk, Firm: fordharrison
This article originally published on the Society for Human Resource Management’s website, on 6 September 2019, highlights the differences between holiday regulations in four European countries and the US.
Holiday entitlement varies in Italy, France, the United Kingdom and Spain. Employers with operations in these countries should become familiar with the differing legislation in each country to ensure compliance.
In Italy, employees are entitled to a minimum holiday period of four weeks but collective agreements can grant additional days. Provided specific conditions are met, employers can request that employees return early from holiday. According to case law, employees must comply with this request if:
- It reflects specific company needs.
- This possibility is provided for in the applicable collective bargaining agreement (CBA) or by an individual agreement.
Therefore, employees can refuse to return early only if there is no obligation under the factors listed above to come back sooner than planned, though most national CBAs (NCBAs) provide for such a duty.
Should employees return from holiday early, they are entitled to receive specific treatment or indemnities, the details of which are included in the agreements. For instance, according to the NCBA for the trade sector, employers may recall employees from their holiday for business reasons, without prejudice to the employee's right to enjoy the remaining holiday period at a later stage. It also provides for the employee's right to be reimbursed for the costs incurred for returning early and, if necessary, for returning to the location of their holiday when the requested work activity concludes.
If employees return early from holiday, some collective agreements also include a right for the employee to receive a travel allowance for the duration of the journey and reimbursement for expenses incurred for the period of holiday left untaken.
In Italy, employees have an obligation to remain available during holidays only in limited circumstances. According to an Italian Supreme Court decision, employees are obliged to guarantee their availability during holidays only if this is provided for by an individual agreement or the applicable collective agreement. In the absence of such agreements, employees are, therefore, free to organize their holiday without considering the risk of being subjected to disciplinary measures for a lack of availability during their time away.
Should employees be unable to take a holiday or rest period for any reason, they can request an indemnity instead, but only for the additional days of holiday recognized in the NCBAs and not for the statutory minimum days of holiday—four weeks—to which they are entitled. Any accrued holiday left untaken by employees at the end of the employment relationship must be compensated when the contract is terminated.
In France, the law provides that workers accrue two-and-a-half workdays of paid leave per month worked—that is, a total of 30 days for a full working year. Collective agreements can provide for additional days, depending, for example, on the employee's seniority. Paid leave is mandatory and cannot be waived by the employee; additionally, the employer cannot replace it with a compensatory allowance.
The order in which workers can take leave is determined by collective agreement. In the absence of an agreement, the order is set by the employer following consultation with employee representatives.
Leave dates are communicated to each worker one month before departure. Employers and workers must then respect the dates that have been set. In the absence of a stipulation in the collective agreement, employers may not, except in exceptional circumstances such as serious economic difficulties, change the dates less than one month before the scheduled time.
Under the United Kingdom's (U.K.'s) Working Time Regulations, workers are entitled to 5.6 weeks' paid holiday annually. That's 1.6 weeks on top of the four weeks guaranteed by the EU Working Time Directive, to reflect the number of public holidays in the U.K. Employers can cancel annual leave with advance notice under the regulations, but these provisions are not commonly used. Employees in the U.K. do not, however, have any explicit ‘right to disconnect’, and they do commonly check and respond to e-mails while on holiday.
Under Spanish law, employees are entitled to a minimum of 30 calendar days of paid annual holiday time, which cannot be replaced with financial compensation. However, annual holiday time can be increased by an individual contract or collective bargaining agreement.
Employees receive holiday pay in the amount that would have been paid during a normal workday, including all salary components linked to the performance of an ordinary workday.
Annual holiday time must be taken by employees in the same year it was accrued. If not, it will be lost and employees will not be allowed to take it the following year except in specific circumstances defined by law, such as when the annual holiday period coincides with specific temporary incapacity or sick leave. In this case, employees can take leave within 18 months of the year when the holiday time was accrued or even at the end of the temporary incapacity, depending on the circumstances. The employer or CBA may allow unused annual holiday time to be carried over.
By contrast, companies in the U.S. are not required by federal law to provide employees with holiday pay. In practice, many employers agree to provide such pay as an employee benefit. However, U.S. employers must reasonably accommodate employees' religious beliefs, which may include leave for religious reasons or holidays. Employers do not have to provide leave for religious reasons if they can show it creates an undue hardship on the business.