We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters.
21 November 2018
The Navarre High Court recently held that an employer had been justified in dismissing an employee for taking her paid annual leave on dates that were unauthorised by the employer.
In January 2017 an employee of an optical chain asked her manager if she could take paid annual leave between 18 April 2017 and 14 May 2017 to travel to her home country of Colombia for personal reasons.
The manager initially granted the employee's request and confirmed the dates. However, in March 2017 the owner of the company – in the course of analysing their employees' holiday calendars – became aware of the period in which the employee intended to take her paid annual leave. The employee's manager advised the owner of the employee's reasons for taking her paid annual leave during the requested period and confirmed that they had followed the same procedure as the previous year to authorise the leave.
On 24 March 2017 the owner emailed the employee informing her that it would be preferable if she took her paid annual leave between July 2017 and August 2017 (the normal holiday period). After an exchange of emails, the employee requested the owner to clearly confirm whether she could take paid annual leave during the requested period.
The owner responded to the employee's request by confirming that she could take paid annual leave only during July 2017 and August 2017. In this respect, he argued that her taking leave during another period may result in a loss of sales and subsequently customers and that, as such, it was not possible for her to take leave in April 2017.
Notwithstanding this, the employee decided to take paid annual leave in the period initially requested, flying to Colombia on 13 April 2017 and returning to Spain on 13 May 2017.
On the employee's return to work, her employer issued her with a letter of dismissal based on disciplinary grounds – in particular, a 'very serious' infringement constituting disobedience and a breach of her contractual good faith.
The employee challenged her dismissal before the labour court, which dismissed the suit. The employee appealed the first-instance judgment on the basis of the following legal and case law grounds:
The Navarre High Court rejected the employee's appeal and confirmed the first-instance ruling, based on the following reasons.
As regards the first appeal ground, the applicable CBA established that "the disobedience to the management of the company or to those who may have managerial or organisational powers in the regular exercise of their functions in any area of work" would qualify as a serious infringement. However, if such disobedience "is repeated, or it involves a clear breach of discipline at work", it would constitute a very serious infringement.
The court considered that the employee's voluntary and conscious decision to disobey her employer's instructions qualified as a breach of discipline at work. Thus, as the employer had clearly described such behaviour in the dismissal letter and qualified it in accordance with the disciplinary regime of the applicable CBA, the court rejected the employee's first allegation.
As regards the second appeal ground, the court concluded that the employer's reaction to the infringement was not disproportionate, as the employee had:
Therefore, the court held that if the employee had considered her employer's decision to be unfair, she should have challenged it before the labour courts rather than "enjoying a right to which she was not entitled".
The court also rejected the employee's last appeal ground on the basis that she had not been deprived of her right to paid annual leave. Rather, the employer had modified the dates on which she could take leave in accordance with the normal exercise of its managerial and organisational powers.
The Workers' Statute states that annual leave periods should be agreed on by employees and their employer.
In general, annual leave periods are determined based on employees' personal interests on the one hand and employers' activities and business needs on the other. When these interests clash (as in the case at hand), it is expressly established that the labour courts must decide the date on which annual leave can be taken.
Following this judgment, employees who ignore their employer's instructions regarding the period during which paid annual leave can be taken run the significant risk of being dismissed on disciplinary grounds for disobeying their employer's orders and breaching their contractual good faith obligation. That said, a case-by-case analysis should be carried out in order to verify a dismissal's feasibility.
For further information on this topic please contact César Navarro or Elena Esparza at CMS Albiñana & Suarez de Lezo by telephone (+34 91 451 9300) or email (firstname.lastname@example.org or email@example.com). The CMS Albiñana & Suarez de Lezo website can be accessed at www.cms-asl.com.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
ILO is a premium online legal update service for major companies and law firms worldwide. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription.