Explosive ECJ ruling: Remaining leave must not expire

Created: 2022-12-17 04:54

By: Lisa Mayerhofer

This year, the Federal Labor Court will make a decision on the statute of limitations for holiday entitlements.

Employees could then claim forfeited remaining vacation time – also retrospectively.

Munich – Before Christmas, the judiciary could give German employees a small gift: On December 20, the Federal Labor Court (BAG) will decide on the statute of limitations for holiday entitlements.

The European Court of Justice (ECJ) in Luxembourg (AZ: C-120/21 LB) had previously determined that vacation days should not automatically become statute-barred after three years.

Tax clerk complains about expired vacation time - and gets right

A woman from North Rhine-Westphalia, who worked as a tax clerk and accountant in a law firm from November 1996 up to and including July 2017, had filed a complaint.

Your holiday entitlement was 24 days per calendar year.

At the beginning of March 2012, her employer had given her a certificate, due to the high workload, that her remaining 76 days of vacation from 2011 and previous years would not expire.

In the years 2012 to 2017 more vacation days accumulated.

When the employment relationship ended at the end of July 2017, the woman demanded compensation from her previous employer for 101 unused vacation days and a Christmas bonus, totaling 23,092 euros.

The employer had already paid 3,201 euros of this.

The employer considered the remaining claim to be time-barred.

According to his reasoning, the general limitation period of three calendar years contained in the German Civil Code applies.

The BAG submitted the case to the ECJ for review.

And the Luxembourg judges basically agreed with the plaintiff in September.

It is true that the employer has a legitimate interest in not being confronted with requests for leave or financial compensation for paid annual leave not taken that are more than three years old.

However, this does not apply if the employer, as in the present case, did not ask the employee to take vacation during the employment relationship or informed them that vacation entitlements were about to expire.

Employers must individually indicate remaining vacation time

According to the court, the employer is responsible for the fact that the holiday was not taken.

He could then not benefit from the three-year limitation period.

However, the ECJ did not have to decide how long claims can be asserted.

The Federal Labor Court wants to determine this in December.

For German employees, this means that vacation days not taken can no longer simply expire and become statute-barred, but must be granted or paid out.

What might that mean?

"This means that employees can assert holiday entitlements from the last few decades - even against their ex-employer," explained employment lawyer Michael Fuhlrott to the

newspaper.

However, the BAG still has to determine the details.

The remaining vacation time that has expired cannot be claimed if the employer has sufficiently informed his employees about it.

But neither a sentence in the employment contract nor a mass e-mail with a holiday reminder is enough for this.

Kathrin Vossen, specialist lawyer for labor law in Cologne, points out at the

that the reference to the open vacation must be individualized.

Each employee must be made individually aware of how many open days there are and when they can expire.

"I would do that by email, for example," advises Vossen to employers.

Forfeited remaining vacation: Juicy additional payment for the plaintiff

This notice comes too late for the law firm: their ex-employee can now look forward to a high back payment.

According to

, the previous judgment of the regional labor court referred to a “conclusively submitted remaining holiday entitlement of 76 days” and a daily rate of 228.64 euros.

According to the magazine, you should be awarded around 17,400 euros plus interest. 

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