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Off to vacation: The European Court of Justice has strengthened the rights of employees in a landmark judgment on vacation entitlement
Photo: Ana Rocio Garcia Franco/Getty Images
SPIEGEL:
Ms. Mutschke, the European Court of Justice has ruled that vacation days no longer automatically expire after three years.
Can all employees who have not taken a day of vacation at some point still claim it?
Nicole Mutschke:
Yes, that's how I understand the verdict.
The employer must explicitly point out to his employees if they still have remaining vacation days and ask them to take these vacation days.
If he fails to do so, the holiday entitlement remains.
SPIEGEL:
If I now want to claim vacation days that have expired, do I have to prove that I didn't receive such a notification?
Mutschke:
No, the burden of proof lies with the employer.
SPIEGEL:
Is a circular email to all employees that says: Please take the rest of your vacation time enough?
Mutschke:
No, such a circular email is not enough.
The regional labor court had already said very clearly that the information must be given individually.
For evidence purposes, the employer should also include the notice in the personnel file.
In the best case, the employer will even have his employees sign it so that they can also prove access.
SPIEGEL:
There are employment contracts that explicitly state that vacation entitlements expire within a certain period of time.
Does the obligation to notify still apply?
Mutschke:
The obligation to inform applies in any case.
The exciting question is whether such contractual regulations can lead to the loss of the claim.
The ECJ has not commented on this.
German law also recognizes the special case of forfeiture.
This could come into play if, for example, you now want to claim holiday entitlement from an employer for whom you have not worked for years and who does not expect you to make any more claims.
Such cases could be presented again to the ECJ.
holiday entitlement in the event of illness
SPIEGEL:
What happens if you can no longer take the vacation days that have been postponed due to illness?
Mutschke:
The European Court of Justice passed a second judgment on this today (cases C-518/20 and C-727/20).
It was about holiday entitlements from the years before a long-term illness.
And here, too, the judges say: Such a holiday entitlement remains in place if the employer has violated his duty to notify.
SPIEGEL:
The ECJ describes employees as “the weaker party to the employment contract”.
This is a hotly debated topic in the SPIEGEL forum.
Were you also surprised by the clear wording of the judges?
Mutschke:
No, not at all.
Labor law is employee law, and that was the case in Germany even before the ECJ ruling.
The protection of workers always comes first.
It is also not within the meaning of German law for employers to prevent their employees from taking their vacation for three years and then point out that it has now expired.
In the end, it's all about enforcing an already existing rule.
SPIEGEL:
Nevertheless, the verdict sent a signal.
Is a wave of lawsuits now rolling towards German employers?
Mutschke:
I don't think so.
I have been involved in employment law for 20 years.
In the past, lawsuits for protection against unfair dismissal were part of my everyday life, today hardly anyone wants to take action against a dismissal because most of them immediately find a new job that is even better paid.
Now employers tend to come to me who want to find ways to make themselves even more attractive to employees.
You have to find someone like the tax clerk who doesn't take 76 vacation days.
