With its recent judgment No. 17643 of 20 June 2023, the Italian Court of Cassation affirmed the principle that the limitation period for a worker’s right to receive compensation in lieu of untaken holiday leave and weekly rest starts from the termination of the employment relationship, except where the employer proves that the worker was put in a position to enjoy the accrued holiday leave.
In particular, the employer must provide proof that it has invited the worker to take the holiday leave at a time that ensures that the leave still provides the person concerned with the rest and relaxation for which it is intended. In addition, the employer must have warned the worker that, if the holiday leave is not taken, it will be lost at the end of the reference period.
In the case examined by the Italian Court of Cassation, a worker, following the termination of the employment relationship due to resignation, brought an action before the Court of Milan requesting, among other claims, an order that the employer pay her compensation in lieu of untaken holiday leave.
The Court partially accepted the worker’s request, while the Court of Appeal of Milan upheld the worker’s cross-appeal, recognising the right to receive compensation in lieu of holiday leave for a total of 248 days (instead of 124 days as ordered by the Court at first instance).
The employer appealed to the Italian Court of Cassation against the judgment of the Court of Appeal of Milan, submitting, among other things, that the worker’s rights were time-barred, given the ten-year limitation period for compensation in lieu of holiday leave that must start to run during the employment relationship.
In this regard, the Italian Court of Cassation, confirming the rulings of the first instance judges, stated that the limitation period of the worker’s right to compensation in lieu of untaken holiday leave and weekly rest ‘starts from the termination of the employment relationship, unless the employer proves that the right to holiday leave and weekly rest was lost by that worker because he or she did not enjoy it despite the invitation to use it; the invitation must be clear and given in good time to ensure that the holiday leave and rest periods provide the person concerned with the rest and relaxation for which they are intended, and must contain a notice that, in the event of non-enjoyment, such leave and rest will be lost at the end of the reference period or an authorised carry-over period’.
In conclusion, therefore, it is better not to postpone holiday leave when it is the employer who invites the worker to use it to avoid the risk of definitively losing the right, including that relating to the monetisation provided for at the end of the employment relationship.
Other related insights:
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
Source: Guida al lavoro de Il Sole 24 ore.
Guida al Lavoro publishes a contribution by Vittorio De Luca and Antonella Iacobellis about the management of holidays in times of coronavirus.
The Government, with the latest measures issued, has identified the possible tools available to employers for the management of employment relationships in the Covid-19 emergency, including the “recommendation” to “promote the use of holiday periods”. Since “recommending” should not mean allowing the employer the power to derogate from the statutory holiday arrangements, the employer’s imposition of the use of holiday periods by its employees must be carefully considered.
Click here to read the DLP insights related to the matter and the considerations of the Firm.
The right to take an annual period of paid leave is a right of constitutional rank according to Article 36 paragraph 3, of the Italian Constitution, which provides that “the worker has right […] to an annual period of paid leave, and he cannot renounce it”.
On the other hand, Article 2109 Italian Civil Code is also concerned with the institution of holidays: “The employee has […] also right […] to an annual period of paid leave, if possible continuous, in the time that the employer establishes, taking into account the needs of the company and the interests of the employee. The duration of this period shall be determined by law, custom or equity. The employer must inform in advance the employee with reference to the period of the holidays. The notice period provided with Article 2118 may not be counted in the annual paid leave”.
Source: full italian version published by Guida al lavoro – Il Sole 24 ore.
