Ratified treaty¹

Effect of illness on holidays with pay/ Direct resolution of a dispute on the basis of international law

The Savona Magistrate’s Court had to determine whether an illness occurring during paid holidays interrupted the course of the paid holiday. The Court first analyzed existing domestic law, which was based mainly on case law. The Court of Cassation considered at the time in Italy that an illness occurring during the period of paid holidays did not interrupt the course of that period. The Savona Court explained that “the issue would have to be addressed in the light of a new legal element (…), which for the time being is sufficient to support the argument that sickness suspends the course of the holidays and which will very shortly suffice to impose that argument.”

For Italy had in fact just ratified ILO Convention No. 132 on Holidays with Pay, in which Article 6(2) stipulates that:

“Under conditions to be determined by the competent authority or through the appropriate machinery in each country, periods of incapacity for work resulting from sickness or injury may not be counted as part of the minimum annual holiday with pay prescribed in Article 3, paragraph 3, of this Convention.”

The Court found that Convention No. 132 was not a superfluous repetition of ILO Convention No. 52 on Holidays with Pay, which Italy had already ratified; it considered that this newly adopted instrument explicitly regulated the effect of these factors [holidays and sickness] on the course of the period of holiday.

The Court then proceeded to analyze the Convention and came to the following conclusion:

“The expression “incapacity for work” that is used in the Convention rather than “interruption”, which was used in the previous Convention, not only emphasizes the fact that no work has been performed but also, and in particular, the physical condition of the worker, who is unable to work because of sickness. The fact that it is left to the legislator in each country to establish the conditions in which sickness can be considered a cause for suspending the holiday underlines that it is prohibited for the course of the holiday to coincide with a period of physical incapacity of the worker, the purpose being to guarantee that he has the opportunity to take full advantage of his annual rest.”

The Court thus found that:

“The justification of annual rest must be understood not only, or at least not exclusively, as granting the worker a means of recovering his mental and physical energy with a view to resuming work, but essentially as granting him/her a period in which he has full disposal of his own time, which he can devote to his/her family, social or cultural interests, etc.” 

Drawing directly on the ILO Convention No. 132, the Savona Magistrate’s Court ruled that an illness occurring during paid holidays interrupted the course of the paid holiday. 

¹ ILO Convention on Holidays with Pay (Revised), 1970 (No. 132).