The European Court's ruling states: the worker has the right to enjoy his or her holidays during a period other than his or her sick leave, when he or she would not have been able to enjoy them during the sick leave.
At the national level, the Supreme Court ruling of 3 October 2012, which follows taiwan business mailing list the interpretation of the European Court, is very important.
The issue under discussion is the overlapping of vacation with temporary disability , in this case due to common illness.
Temporary disability causes the suspension of the employment contract and therefore, the suspension exonerates the reciprocal obligations of working and remunerating the work (article 45 ET)
Therefore, it must be understood that the right to enjoy vacations is suspended. The situation of temporary incapacity suspends the employment contract regardless of whether the worker is working or on vacation at the time of the temporary incapacity situation. If this were not the case, days in which the contract is suspended would be counted as vacation.
The Court, following the line of the CJEU, recognises the right to enjoy holidays after temporary disability, if this occurred before the holiday period or the enjoyment of the remaining time of the holiday, when the temporary disability arose during the holiday.
The ruling also states that treating situations of concurrent vacations and temporary disability differently, depending on the start of the IT, could only be justified when the leave was not in accordance with the law or there were indications of fraud.
Current legislation
Following the rulings of the Court of Justice of the European Union and the Supreme Court, the 2012 labour reform introduces a third paragraph in article 38.3 of the Workers' Statute.
Article 38.3 ET: In the event that the vacation period coincides with a temporary disability due to contingencies other than those indicated in the previous paragraph that prevent the worker from enjoying them, totally or partially, during the calendar year to which they correspond, the worker may do so once his or her disability ends and provided that no more than eighteen months have passed from the end of the year in which they originated.
The 2012 labour reform makes it possible to take holidays if they coincide with temporary disability. The legislator adapts our regulations to the European Directive and the ILO Convention.