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Working on leave: when is a holiday not a holiday?

Written by
Herzog Fox & Neeman, Israel’s leading law firm.
The Israeli National Labour Court has given guidance on whether the fact that an employee works while on annual leave could mean they are not, in fact, on leave and what factors will influence this.

In May 2022, the Israeli National Labour Court referred, for the first time, to the ‘hot’ issue of whether an employee who works on holiday using technology such as a laptop and smart phone should still be considered to be on holiday.

The ruling dealt with a request for approval of a class action filed by a teaching assistant at the College of Management in connection with various payments. One of the employee’s claims was that she was not paid for work while on vacation.

The National Labour Court examined, among other things, the issue of work during vacation, in view of the fact that technological means such as laptops and smartphones allow access to work almost anytime and anywhere, including during vacation.

The National Labour Court recognised the challenge posed by the technological age, which makes it difficult to separate work time from rest and vacation time. In its ruling, the court emphasised that this challenge requires a careful examination of the question of when rest or vacation loses its characteristic as such, due to work using technological means.

The ruling clarified that this examination should be done by examining the cumulative effect of working with technology during vacation (for example, examining the frequency and scope of the work, as well as examining the amount of time and attention that this work required).

In the case in question, on quite a few of the days that the employee was abroad, she replied to one email message a day. Therefore, based on this, it was ruled that the employee did not establish grounds for supporting her claim that she was owed payment for these days. As a result, she had no basis for a personal claim against the College of Management on this ground (and therefore she clearly had no grounds for a class action on that basis).

Although the issue of the challenging distinction between ‘work’ time and ‘personal’ time in this modern era was not the main issue of this ruling, it has demonstrated that the court acknowledges that there is no clear-cut answer and that the answer depends on the actual circumstances and the main characteristics. The conclusion from the ruling is that even if an employee is needed from time to time for work matters during his or her vacation, this will not automatically negate the classification of the vacation as such, just as attending to personal matters during a work day would not automatically prevent it from being classified as a working day.

A petition to the High Court against the National Labour Court ruling was rejected on 7 July 2022.

To read the full National Court judgement (in Hebrew) click here.


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Liat Shaked-Katz
Liat Shaked-Katz
Herzog Fox & Neeman
Ran Hofman
Attorney - Israel
Herzog Fox & Neeman