taxlaw-en

Copyright 2020 I. Skouzos & Partners.
All Rights Reserved.

espa

Issues related to annual regular leave to employees

Iason Skouzos & Partners > Practice Areas  > Labor & Employment  > Issues related to annual regular leave to employees

Issues related to annual regular leave to employees

The time for granting the leave

Under the current provisions, the employer is obliged to grant the leave to the employee, even if he/she does not accept it, by the 31st of December of each year.

The document number 50239/77 issued by the Ministry of Labor, had accepted that the leave could be extended for a few days in the next year, in case the days are not sufficient until the 31st of December for the exhaustion of the leave, if the employee who will receive the leave has either returned from illness or from maternity leave in the last month (and therefore the leave cannot be consumed until the end of the year).

Payment of surcharge
If the above period has elapsed without the employee having used the regular leave, the claim is converted into monetary, since it is not formally allowed to be transferred to the next or subsequent years (articles 4 par. 1 and 5 par. 1 of Law 539/1945, as well as Supreme Court 434/2011, SC 455/2010 and SC 1234/2003).

In particular, the employer is obliged to pay to the employee the leave salary, plain, when there has been no refusal from his part to grant the leave (i.e. when the employee is the one who refuses to take the leave) and double, i.e. increased (+100% of leave salary) when the leave was requested by the employee, but the employer refused to grant it – therefore an increase in leave salary is due only if the employer is to blame for the non-granting (SC 1050/2018, SC 1568/1999, SC 376/2006).

In the above case of 100% increase in leave paid by the employer to the employee within the calendar year in which it was due, the leave allowance is not doubled, since the relevant provision refers only to leave payment.

Therefore, if the calendar year in which the leave was to be granted is ended and for any reason it was not granted, but neither was the leave allowance paid, then the employer owes the employee the following amounts:
a) the salary for the days he/she worked while he/she had to be on leave,
b) the leave salary/payment he/she would receive if he/she was on leave,
c) the leave allowance which he/she would receive if he/she was on leave, as well as
d) a compensation equal to the leave salary, i.e. an increase of 100% of the paid leave, if the non-granting of the leave is due to the fault of the employer.

It should be noted that any agreement between the employer and the employee for the abandonment or resignation of the latter from his/her right to the leave, even if it provides for compensation, is considered as non-existent.

Relevant case law
The following have been judged by Greek Courts, in case of non-granting of the regular leave:
– The transfer of the leave is invalid, even if it took place with the consent of the employee (SC 1234/2003).
– The compensation-increase of 100% of the leave salary/payment is not due when it is not proven that the employee asked for the leave and the employer forced him to work during this time (SC 636/2000).
– No compensation -increase of 100% of the leave salary/payment is due when the employee did not receive the leave of his/her own free will, in order to increase his/her paid salary (SC 1305/2008).
– The employer’s guilt is presumed when it is proved that the employee asked for the leave to be granted to him/her, but the employer avoided satisfying him/her (SC 902/2017).
– The due date for the leave payment and leave allowance is the end of the relevant calendar year, so the basis for calculating both leave payment and leave allowance and the compensation of 100% surcharge in case of non-granting of the leave, is the remuneration of 31st /12 of the year corresponding to the leave (SC 40/2002). However, in case of termination of the employment contract in any way, the due date of payment of leave remuneration and leave allowance is the time of termination of the employment relationship and not the end of the calendar year (SC 97/2009).

Further sanctions/penalties for non-granting of the leave
Failure to grant the leave by the employer to the employee may result in additional penalties, such as administrative and even penal (decision of the Minister of Labor 60201 / Δ7.1422 / Government Gazette Β 4997 / 31.12.2019 and article 5 par. 7 L. 539 / 1945).

*  The information is accurate to the best of our knowledge as at the time of writing. We have no obligation to update it. We accept no responsibility against any third party who is not a client of the firm and has not signed the terms of our engagement.