The payment of vacations pending enjoyment in 2015 accrued while on sick leave due to temporary disability due to 18 months having elapsed is not applicable.

The Supreme Court resolves the appeal for unification of doctrine filed against the ruling handed down by the Social Chamber of the Superior Court of Justice of the Basque Country (rec. petition no. 865/2020) formulated against the ruling handed down by the Social Court no. 8 of Bilbao (orders no. 479/2018).

The worker provided services in a company starting April 1, 2003, holding the position of engineer. On 01/22/2016, a Temporary Disability process began, in which he remained until the INSS issued a Resolution granting Absolute Permanent Disability. Consequently, the employment relationship was terminated with effect from 09/24/2017. This fact was not the subject of controversy in the litigation.

In the document of claim of the quantity claim procedure , HE request compensation for several reasons, including vacation not enjoyed of the years 2015, 2016 y 2017, bonus , proportional part of extra pay for 2017 and overtime. The Social Court of Bilbao partially estimated his claim, and condemning the company to pay €23,972.72. This sum includes the extra pay claimed, as well as the vacations not taken from 2015, 2016 along with the proportional part of those from 2017 until the date of termination, based on the fact that they had not expired (art.59.2 of the Workers' Statute).

The lower court ruling was resorted in supplication by the company and the TSJ of the Basque Country the partially revoked, estimating the company's intention.  This was based on the fact that the period of 18 months, indicated in art. 38.3 of the E.T. Therefore,the compensation granted was reduced from €23,972.72 to €21,035.12, plus ten percent annual late payment interest. HE denied he right a financial compensation of the vacation not enjoyed 2015. The Court,argument that the worker was in an IT situation uninterruptedly until the termination of the contract and that from 12/31/2015 until the date of termination of the contract exceeded he maximum term of 18 months established in the art. 38.3 of the ET.

The worker presented appeal for the unification of doctrine postulating the existence of infringement of the art. 38.3 y 59.2 of the E.T.. to maintain that the term to be taken into account for the holiday payment was one year counting from the date of termination of employment in the company. To support his argument, he invokes as a contrast ruling the STS of March 14, 2019, appeal of cassation 466/2017 and in turn refers to the STS of May 28, appeal of cassation 914/2012.

The art. 59.2 of the ET establishes “ If the action is brought to demand economic provisions or for the fulfillment of single-track obligations, which cannot take place after the contract has expired, the period of one year will be computed from the day on which the action could be brought.

The question that is debated in cassation consists of deciding whether the worker has right to what pay the s vacation pending enjoyment of 2015.

So much the Public Prosecutor's Office as the supreme They determined that the marriage did not proceed for unification of doctrine, given that  I don't know  found  contradiction between the contested sentence and the one used as a contrast. This is because rules were applied y different foundations, as well as were treated facts y different claims.

In the reference statement several aspects were discussed, it was maintained that the worker was not claiming to enjoy vacations, but rather to pay them, since he had been on medical leave during the period in which he was to enjoy his vacation, therefore, the economic right claimed was recognized. In the words of the court “ The action to make the payment obligation effective has not prescribed.”In the case in question, the worker during 2015 was not in a period of contract suspension due to IT, since his medical leave began 21 days after the end of the year, that is, from January 22, 2016 and the vacation should have been enjoyed before December 31, 2015 . Therefore , it is not a problem of prescription of art. 59.2 of the ET, that of this litigation.

Furthermore, it is important to note that the case of judgment used as contrast refers to a previous period to the new wording of the art. 38.3 E.T., carried out by RD Law 3/2012 of February 10 ratified by Law 3/2012 of July 6, therefore governs for the regulations and doctrine then in force, in which the existence of the period indicated in said article was not even contemplated.

Under this reform,he added a last paragraph in art.38 of the ET, which establishes “In the event that the vacation period coincides with a temporary disability (...) that makes it impossible for the worker to enjoy them, totally or partially, during the corresponding calendar year, the worker may do so once his disability ends and as long as no more than eighteen months have elapsed from the end of the year in which they originated.

The company made reference to this rule to affirm that the deadline to claim vacations corresponding to the year 2015 had passed. This was the basis for the company's claims to be upheld as a request.

In conclusion, the Supreme Court dismissed the appeal, confirming the finality of the sentence handed down by the Court of Justice of the Basque Country.