Early Christmas present for employees: Holidays no longer expire automatically
Created: 12/20/2022, 6:11 p.m
By: Michaela Ebert
The Federal Labor Court has made a judgment that strengthens the rights of millions of workers.
According to this, holiday entitlements can still be asserted years later under certain circumstances.
In the course of the corona pandemic, many jobs were cut - the result: staff shortages in many sectors.
Due to such a shortage of staff, it was not possible for a large number of employees to take their holiday entitlements – as originally planned – in the current year.
A landmark ruling by the Federal Labor Court (BAG) now strengthens the rights of millions of workers.
Accordingly, the entitlement to holiday should no longer expire after three years.
This applies if an employer does not promptly ask its employees to take vacation or fails to warn of an impending statute of limitations.
Volker Henn-Anschütz, a lawyer who works for the Gefeuert.de portal, explains to echo24.de
what the consequences of the judgment are for employers and employees .
Judgment at the Federal Labor Court: The decision was made on this basis
The BAG ruled in two procedures, which dealt with three important core issues relating to employees' vacation:
Existence of holiday entitlement
amount of holiday entitlement
statute of limitations on holiday entitlements
But on what basis is this decision based?
According to Henn-Anschütz, the resolutions were made on the basis of two lawsuits with the following facts: In one of the cases, the plaintiff subsequently demands compensation for her holiday entitlement because she was unable to take the minimum holiday prescribed in the Federal Holidays Act due to the high workload and her employer was not able to respond to the impending statute of limitations had pointed out.
In the second case, the plaintiff had been continuously unable to work since 2017.
She is demanding holiday entitlements from the time before, which she was unable to take due to illness.
Judgment of the BAG based on decisions of the European Court of Justice
It is therefore disputed: Can the entitlement to minimum vacation time become statute-barred if the employee is unable to take his or her vacation or was not informed of the impending statute of limitations on the entitlements, or does a corresponding statutory statute of limitations violate EU law?
Is there an unlimited entitlement to statutory minimum leave?
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In both cases, the 9th Senate of the Federal Labor Court, which is responsible for vacation law, suspended the proceedings and submitted the legal issues to the European Court of Justice for a preliminary ruling.
The decisions had already been made there.
Holiday entitlement does not expire: Who is affected by the verdict?
Now the BAG is following suit.
The judgment affects all employees who are entitled to minimum leave under the Federal Leave Act and who cannot or could not take it in the current calendar year.
Holidays that go beyond the minimum entitlement in the employment contract, collective agreement or company agreement may also be affected by this judgment, the lawyer explains.
The Federal Labor Court decides on December 20th that remaining vacation time must not expire.
© picture alliance / Flashpic |
Jens Krick
In addition, the judgment is also retrospectively strong.
But it depends on the circumstances.
If the employer has failed to point out that the vacation days have expired, the entitlement can continue or exist indefinitely.
In principle, it could be possible that employers would have to compensate former employees for unused vacation.
The Federal Labor Court is responsible for determining when and under what circumstances such a breach of the employer's notification obligation occurs.
According to the judgment of the BAG: Employers must take an active role
In principle, every employer would have to point out the expiry of holiday entitlement in good time.
And not only that: With the notification, it must also be possible for the employee to actually take the vacation.
Otherwise the obligation of the employer would not be fulfilled.
If he does not comply with these obligations, the entitlement to holiday could continue to exist.
This also applies in the event of a job change.
If you change employer, holiday entitlements do not expire automatically.
Many holiday entitlements can certainly not be compensated by the employer with holiday afterwards, purely from a practical point of view.
This applies in particular to previous employment.
In such cases, the legislation grants a corresponding financial compensation, the so-called holiday pay.
Monetary compensation would therefore be due for each day of vacation not granted.
In such cases, the legal expert advises contacting the works council or employee representatives or seeking legal help straight away.