Fundamental verdict made: Remaining leave must not simply expire

Created: 12/20/2022, 3:44 p.m

By: Lisa Mayerhofer

It happens again and again in Germany: holidays are not taken on time and there are arguments as to whether they have expired.

Now there is a fundamental judgment that should please many employees.

Erfurt – It's about a stately 101 vacation days – which a tax clerk from North Rhine-Westphalia did not take for a period of several years due to the high workload.

Your employer thinks the holiday has expired and is time-barred.

On the other hand, the woman complained – and her case drew wide circles: In September, the European Court of Justice in Luxembourg dealt with it, this Tuesday the Federal Labor Court in Erfurt. 

Fundamental verdict: Holidays shouldn't just be wasted

The court has now made a fundamental judgment on this: Holidays do not automatically become statute-barred after three years.

This applies if employers do not ask their employees to take their vacation in good time and warn them of an impending statute of limitations, the Federal Labor Court ruled (9 AZR 266/20).

His landmark judgment has an impact on many employees in Germany who are arguing about outstanding holiday entitlements, some of which go back years.

It strengthens their position.

"This is often the case when you change jobs or when an employment relationship is terminated for another reason," says Bonn employment lawyer Gregor Thüsing.

In principle, it was previously the case that vacation in the event of a long-term illness expired 15 months after the end of the vacation year.

Holidays become statute-barred after three years.

The German statute of limitations is now overturned if the employer is passive.

The obligation to inform applies to him – also for employees who have been ill for a long time.

Holiday entitlement: Employers must take action

With their verdicts, the highest German labor judges implemented September decisions of the European Court of Justice (ECJ), after which employers must play an active role and are not allowed to watch as holiday entitlements expire.

If they do not fulfill this obligation, the entitlement to paid time off remains.