Supreme Court no. 13613/2020 stated that: “The right of employee to paid annual leave must be considered a fundamental principle of EU social law, which cannot be derogated from and whose implementation by the competent national authorities can only be carried out within the limits explicitly indicated by Directive 2003/88. It is not compatible with art. 7 of the aforementioned directive, a national legislation that provides for an automatic loss of the right to paid annual leave, not subject to prior verification that the worker has actually had the possibility to exercise this right, in fact the employee must be considered the weak party in the employment relationship. work, so that it is necessary to prevent the employer from having the right to impose a restriction on his rights “.
Therefore, the non-payment of a financial allowance for the annual leave not taken at the time of the termination of the employment relationship would not only be in conflict with
- Article 7 “Annual leave” of Directive 2003/88 according to which: “1. Member States shall take the necessary measures to ensure that each employye benefits from paid annual leave of at least 4 weeks, according to the conditions for obtaining and granting national practices. 2. The minimum period of paid annual leave cannot be replaced by a financial allowance, except in the event of termination of the employment relationship.“;
- but also with Article 36 Italian Constitution: “The worker has the right to a remuneration proportionate to the quantity and quality of his work and in any case sufficient to ensure a free and dignified existence for himself and his family. The maximum duration of the working day is established by law. The worker has the right to weekly rest and paid annual leave, and cannot renounce them ”.
Source: Guida al lavoro de Il Sole 24 ore.
