where they choose, save where searching for voluntary risks17, they may work, unless prohibited by the company or public administration body employing them, for various and plausible reasons, for information protection reasons or because there is no safe connection or because employees never state that they are taking time off, thus with no reduction in the number of days off they are entitled to. Excluding the foregoing cases, which are possible, but not likely, the combination of leisure and work enables to put down the day as a day off only if leisure prevails, in accordance with the criteria in force to distinguish days off from sick leave18, with no differences between public and private sector employees. Without the protection ensured by Article 7 of Directive 2003 / 88 / EC19, the inalienable right to annual leave assumes that this right is not exercised if there is no actual rest, also for chance events not resulting from the employer’s will, such as illness20. Any illness suspends the leave “only where, for its nature or how it presents, it prevents leave from being enjoyed, i. e. energy recovery”21. Although from a qualitative perspective, the prevalence criterion requires that it be determined whether there was the possibility of adequate leisure and thus of satisfying relational time and pursuance of personal interests not related to work or that was prevented by the illness symptoms22. As the right to unwind and restore one’s psychophysical conditions has priority standing23, the number of days off to be taken shall remain unchanged if the illness is so serious as to cause actual prejudice24. Save where, in the “workation” period, work is performed against the intention of the company or public administration body employing the worker, it is to be determined whether work proved prevailing over rest25. If that is not the case, it shall be deemed that the days off were enjoyed while work continued remotely, in good faith, for marginal achievement of important objectives, because, if not 17 See Italian Court of Cassation, 25 January 2011, no. 1699, in Lav. giur., 2011, 909. 18 See European Court of Justice, Fifth Chamber, 3 May 2012, Case no. 337 del 2011, Georg Neidel v. Stadt Frankfurt am Main. 19 See European Court of Justice, Grand Chamber, 20 January 2009, Case no. 350/2006, Stringer and Others v Her Majesty’s Revenue and Customs, in Lav. giur., 2009, 467. 20 See Italian Court of Cassation, 9 July 2012, no. 11462, in Giur. it. rep., 2012. 21 See Court of Appeal of Milan 11 March 1995, in Orient. giur. lav., 1995, I, 141. 22 See Court of Appeal of Novara 6 March 2018, in Giur. it. rep., 2018. 23 See Calabria Region Administrative Court, Catanzaro, First Chamber, 19 February 2018, no. 456, in Giur. it. rep., 2018. 24 See Court of Appeal of Milan, 9 September 2016, in Giur. it. rep., 2016. 25 See European Court of Justice, Tenth Chamber, 30 June 2016, Case no. 178, Alicija Sobczyszyn v. Skola Podstawowa w Rzeplinie, in Giur. it. rep., 2016. 105 “WORKATION” AND THE EMPLOYMENT RELATIONSHIP
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