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Can the employer force vacation time on the employee?

Published in: Employment law
by Antonella Marmo
Home > Can the employer force vacation time on the employee?

The Italian Supreme Court in Order No. 24977 of 2022 addressed the case of “imposed vacations” by the employer and the terms and conditions for the validity of such an employer’s decision.

In this article:

The case: the "imposed vacations" by the employer

This case involves an employer who, in the time frame between 2012 and 2013, had decided to impose vacation days on some workers that they had never requested.

What’s more, the workers, upon examining their respective pay checks, had only discovered later on that they had “used up” their vacation days.

As it turned out, the employer, instead of properly designating the extraordinary redundancy fund, had passed off the relevant hours as workers’ time off and thus as vacation time.

The workers’ request for the employer to be ordered to restore the illegally curtailed hours in favor of each had been upheld in the first instance by the Tribunal and upheld by the Court of Appeals.

Before analyzing the Italian Supreme Court’s reasons, let’s see what the Law provides regarding the worker’s vacation.

Who has the right to decide on vacation time?

The right to leave is enshrined in Article 36 of the Constitution: “the worker has the right to weekly rest and paid annual leave, and cannot waive it”.

Hence, the employee is entitled to paid rest, to recover mental and physical energy and social relations. Usually, the vacation period is always agreed upon between the employer and employees, thus also taking into consideration business needs.

In fact, the employer always has the final say on vacation time. According to Article 2109 of the Italian Civil Code, vacations must be taken “at such time as the entrepreneur determines, taking into account the needs of the business and the interests of the employee.”

As an example, consider the emergency period related to the Coronavirus, in which the legislature even intervened by advocating vacations and/or smart-working.

In light of these considerations, the Supreme Court’s ruling clarified what arrangements must be made for the forced placement of vacations.

When is vacation placement vexatious?

As a general rule, the employer not only has the power to define employees’ leave but also to modify it. This power, as we have seen is enshrined in Article 2109 of the Italian Civil Code and “also implies the power to modify it based only on a reconsideration of business needs.”

However, changes must be communicated with advance notice to the employee so that the employee can point out to the employer that the leave is contrary to his or her interests. After all, the employee must be able to arrange his or her rest as best as possible so that his or her mental and physical energies can be effectively restored.

The employer’s power over leave, which is an expression of his general managerial power, while meeting the needs of the company, can never produce vexatious results.

The Italian Supreme Court decision (ord. no. 24977, 2022)

According to the Supreme Court, the normative ratio “meets a balanced satisfaction of the opposing subjective positions: that of the employer to arrange vacations prioritizing his needs. That of the workers to be able to achieve the benefit to which the vacations are preordained (the recovery of psychophysical energies).”

In the case analyzed, the employer had not provided any notice to the workers of the need to take their accrued and unused vacation before the activation against them of the extraordinary layoff fund.

Therefore, the forced placement of workers on vacation, of which they had been made aware only after they had enjoyed it and only through the analysis of their paychecks, “constitutes a means of communication that is at odds with the objective achievement of the purpose to which the vacation is intrinsically preordained”.

The importance of preventive communication

The placement of workers on vacation, unilaterally arranged by the employer (moreover, learned only later by the workers themselves and completely at random), is invalid. It is invalid if it is not preceded by direct communication to each worker concerned.

It is essential in any case that the worker makes himself heard, since the worker’s omissive behavior (neglecting to object to his placement on leave) could be considered by the employer as tacit consent.

Obviously, this leads to the reconsideration of the emergency period where some employers may have placed workers on leave by neglecting appropriate communications.

© Canella Camaiora Sta. All rights reserved.
Publication date: 2 February 2023

Textual reproduction of the article is permitted, even for commercial purposes, within the limit of 15% of its entirety, provided that the source is clearly indicated. In the case of online reproduction, a link to the original article must be included. Unauthorised reproduction or paraphrasing without indication of source will be prosecuted.

Antonella Marmo

A Lawyer at the Canella Camaiora Law Firm, a member of the Milan Bar, she focuses on Commercial and Employment Law.
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