Top manager and substitutive allowance for vacation days

The Court of Cassation, with judgement No. 23697, filed on 10 October 2017, confirmed the consolidated case law trend according to which a top manager, who, even if having the power of self-assigning the vacation period, does not exercise such power, is entitled only to a substitutive allowance for vacation days for the current year, unless he/she proves that he/she was not be able to take the leave for exceptional and objective company needs. In particular, the Court of Cassation clarified that the substitutive allowance for any vacation day is based, on the one hand, on the principle of the annual inalienability of a vacation period as established by Directive 2003/88/EC and Legislative Decree No 66/2003 and, on the other hand, in the general civil protection established in the contractual liability, which, however, assumes that failure to meet the mandatory regulation on annual vacation leave by the employee is attributable to the employer. Specifically, in reference to the aforementioned liability, the Court of Cassation stated that the employer’s contractual liability must be considered mitigated in the case of a top manager, since a top manager has the power to self-assign a leave in full autonomy, without suffering any limitation by the employer. From this it follows that in the event of a dispute regarding a top manager failure to use vacation leave, the employer shall prove that the top manager was able to choose time and methods for enjoying the leave autonomously and shall prove that the missed vacation period can be attributed to objective corporate needs.