Spain: What Happens if an Employee Still has Vacation Days Left at the End of the Year?

Employees in Spain are entitled to thirty calendar days of vacation, as provided by law, although this may be extended by various sectoral and company collective bargaining agreements.

These vacation days correspond to the calendar year and are accrued by the employee in proportion to the services provided during the calendar year.

Apart from accrual, vacation must be taken within the calendar year in which it was accrued, unless otherwise agreed between the company and the employee.

In cases where no such agreement exists, disputes often arise when employees reach the end of the calendar year and still have vacation days outstanding.

This situation often leads to disputes, either because (i) employees want to take their vacation once the calendar year has ended, or (ii) because there has been a dismissal and the employee wants to be paid for accrued vacation that has not been taken.

The CJEU has already ruled on this matter on numerous occasions, for example, in its judgements of 6 November 2018 (C-684/2016) and 22 September 2022 (C-120/2021), and we are now seeing rulings from Spanish courts applying the CJEU’s case law.

In this regard, the most recent ruling was that of the High Court of Justice of Navarre on 7 June 2024 (Rec. 77/2024), which echoes all the case law of the CJEU to confirm that:

• The company must ensure that the employee effectively enjoys their vacation. This business obligation must be transparent and requires active measures, such as reminders to employees before the end of the year to use their outstanding vacation days.

 

• Therefore, only when the company has fulfilled its obligation to ensure that the employee effectively enjoys their vacation will it be lost at the end of the calendar year.

 

• If the company fails to fulfil its obligation to ensure that employees effectively enjoy their vacation, the vacation not taken in the calendar year in which it accrued may be postponed to the following calendar year.

 

• Furthermore, in cases where there is a termination of contract at the beginning of the year and the dismissed employee still has vacation days pending, the employee shall be entitled to be paid for those days when the company has not fulfilled its obligation to ensure that the vacation is effectively taken.

 

In conclusion, sending a reminder to employees during October and/or November to use their accrued but unused vacation days is an appropriate measure to mitigate the risk of subsequent claims by employees.