The Federal Labor Court has decided: Employers must ensure that employees can take their vacation - otherwise the entitlement does not expire.
Munich - In two fundamental decisions, the Federal Labor Court has strengthened the rights of employees.
Here is an overview of the most important questions and answers.
What did the Federal Labor Court decide?
There are always arguments about expiring vacation days.
The Federal Labor Court has now made a landmark decision in two exemplary cases, which is likely to affect many other employees as well.
The first case concerned the limitation period of three years.
A tax clerk complained that she was unable to take 101 vacation days for several years due to her heavy workload.
Her employer withdrew to the position that the claims were time-barred.
On the other hand, she complained – and was right in the end.
The second case concerned a hospital worker who had been ill for a long time.
During the year she was ill, she was only able to take part of her vacation.
The point at issue here was whether the remaining days had expired.
What was the previous legal opinion?
For a long time, the lawyers assumed that vacation days would automatically expire if 15 months had passed since the vacation year.
After three years, they assumed the claims were time-barred.
In 2019 there was already a fundamental judgment that imposed an obligation on employers to cooperate so that vacation days were not wasted due to ignorance or negligence.
They must inform their employees about this and ask them to take the remaining vacation time.
The questions about the statute of limitations or illness remained unanswered at the time.
The Supreme Court has now done so.
What role did the European Court of Justice (ECJ) play in the proceedings?
The Erfurt judges submitted the two cases to the ECJ.
They wanted to know whether a statute of limitations is possible under European law if the employer does not inform an employee that they are on vacation.
In September of this year, the Luxembourg judges ruled that this was not possible.
If the employer does not fulfill his obligations, the claim does not lapse or become time-barred.
How can claims be preserved for many years to come?
Here, too, the Federal Labor Court decided on an exemplary case.
It was about an airport employee who became unable to work in December 2014.
At that point in time he was still entitled to 24 vacation days, which according to the previous legal opinion would have expired.
In this case, however, the judges see the employer as responsible.
He should have worked to ensure that vacation was taken on time in the year.
Therefore, the entitlement has not expired, even if there was still a full reduction in earning capacity in 2019.
Employers are therefore given far more responsibility by the courts than they used to be.
How much holiday are employees entitled to?
There is a minimum legal requirement.
With a six-day week, you are entitled to 24 vacation days, and with a five-day week you are entitled to 20 days.
With shorter working hours, the entitlement is further reduced.
In collective bargaining agreements or individual negotiations on working hours, there are usually upwards agreements with more vacation days.
Does the holiday have to be taken within the current year?
The aim is for employees to be able to recover from the workload on a regular basis.
Therefore, they should also take vacation during the year in which the entitlement arises.
In many cases, vacation can no longer be taken entirely in the current year.
As a rule, employees make up for the open time in the first quarter of the following year.
"Saving up" vacation days over several years is not permitted.
In cases such as those that have now been decided by the Federal Labor Court, a holiday entitlement does not necessarily disappear, even if it takes years.
Does the employer have to take my vacation requests into account?
Consider yes, follow them no.
Operational concerns play an important role in the granting of holiday requests, for example when there are holidays for everyone in a company.
Employers must also check social issues.
Who needs vacation the most, who needs to be given vacation time off and other aspects.
A stubborn reaction to a refused holiday period should be avoided.
In the worst case, simply continuing and leaving the business to its own devices can lead to termination.
What about holiday entitlement for short-time work?
In general, short-time workers are also entitled to vacation.
However, according to the DGB, the entitlement is reduced according to the lost working hours.
If, for example, short-time work is “zero” for a month, one-twelfth of the annual entitlement is lost.
