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The average German has 28 vacation days a year
Photo: Catherine Falls Commercial/Getty Images
Holiday entitlements expire after three years.
But when does the deadline start?
This question has now been dealt with in the European Court of Justice and the answer is: At the time when the employees are informed about the deadline.
If they are not informed, the holiday entitlement remains.
As early as February 2019, the Federal Labor Court ruled that vacation cannot expire so easily if the employer has not informed its employees in advance that there is still vacation that may be about to expire.
The notice can be given by email or letter, but it must be specific and individual.
76 days remaining leave
In the specific case, a tax clerk from Germany who worked in a law firm from 1996 to 2017 complained.
She was entitled to 24 vacation days per year, which she said she had not been able to take for many years because there was so much work to do.
At the beginning of March 2012, her employer certified that she was entitled to a total of 76 days of remaining leave from 2011 and previous years.
This does not expire on March 31, 2013, as is usual, because she was unable to start it “because of the high workload in the law firm”.
In the following years, too, the tax clerk did not take all of the vacation days to which she was entitled.
However, her employer did not ask her to take any more vacation, nor did he point out that vacation that had not been applied for could be forfeited.
The statute of limitations in itself is not a problem
When the employment relationship ended at the end of July 2017, the tax clerk received a gross payment of EUR 3,201.38 for 14 vacation days not taken in 2017.
That seemed unfair to her: she demanded compensation for a further 101 vacation days and went to court.
There, the employer argued that the holiday entitlements were now time-barred.
The case was first heard before the labor court in Solingen, then before the state labor court in Düsseldorf (file number 10 Sa 180/19) and finally ended up before the federal labor court (file number 9 AZR 266/20), which asked the ECJ for a preliminary decision.
This should examine whether the limitation period of three years provided for in German law for unused vacation days is compatible with European law.
The judges' decision is now: Yes, the limitation period itself is unproblematic.
But it can begin at the earliest when the employer has pointed out the deadline.
If the employee is not informed that the vacation days are about to expire, the entitlement remains after the three years.
"Since the worker is to be regarded as the weaker party to the employment contract, the task of ensuring that the right to paid annual leave is effectively exercised should not be entirely delegated to the worker," according to the Luxembourg judgment (Case C-120 /21LB).
The court thus follows the assessment of Advocate General Richard de la Tour.
The tax clerk can now look forward to a high back payment.
In the judgment of the regional labor court, there is talk of a "conclusively submitted remaining holiday entitlement of 76 days" and a daily rate of 228.64 euros.
You should now be awarded around 17,400 euros plus interest.
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