Remaining leave no longer expires automatically - employees must now take this into account
Created: 12/21/2022, 3:05 p.m
By: Tobias Utz
The fact that remaining vacation time no longer expires automatically can have enormous consequences for employees: an overview.
Frankfurt/Erfurt – In a landmark judgment ,
the Federal Labor Court ruled that remaining leave for employees can only become statute-barred under special conditions: You can find out what that means in concrete terms in the compact overview from
Remaining leave no longer expires automatically: you should bear this in mind
The status so far:
According to the "old" regulation, remaining vacation time became statute-barred after three years.
If workers failed to take vacation, it was simply forfeited.
The status according to the judgement:
According to the "new" regulation, employers must promptly ask their employees to take the accumulated vacation time.
Otherwise the entitlement to it can remain in place much longer than before.
According to a press release from the Federal Labor Court, the three-year limitation period begins "only at the end of the calendar year in which the employer instructs the employee about his specific holiday entitlement and the expiry periods and the employee nevertheless did not take the holiday of his own free will".
When does vacation expire?
The Federal Holidays Act regulates that employees are entitled to annual holidays – how much depends on the contract.
Leave must be taken in the relevant calendar year.
The law does not provide for holidays to be “carried over” into the new year.
This is only possible in exceptional cases, but on the condition that it is taken by March of the following year.
According to the law, however, there must be “urgent operational or personal reasons” for holiday entitlement to be “taken along”.
Holiday entitlement in the event of illness:
If employees fall ill for a long time, the holiday entitlement will in future expire 15 months after the end of the year instead of three years as previously: According to a judgment by the European Court of Justice, it must be recognized what difficulties arise for employers if employees are absent for a long period of time and accumulate holiday entitlements.
It is therefore fundamentally correct that in the event of illness, holiday entitlements can only be transferred for 15 months and then expire.
However, this does not apply to claims from the period before or after the illness in which the employee actually worked.
Verdict on the remaining leave: What was it all about?
The basis of the court case of the Federal Labor Court in Erfurt were two cases, both from North Rhine-Westphalia.
In the first case, a tax clerk complained who had collected a total of 101 vacation days.
As a reason why she had not taken the vacation, she gave the years of heavy workload.
In the second case, a hospital employee complained who had also accumulated numerous vacation days, which ultimately expired.
As a reason why she had not taken them, she gave a long illness.
In both cases, the employers allowed their holiday entitlements to lapse, and lawsuits were filed.
Tourists sit on a bench on the beach in front of the North Sea in cloudy weather.
© Hauke-Christian Dittrich/dpa
The case of the tax clerks from NRW shows what consequences the judgment of the Federal Labor Court in Erfurt can have.
She receives 17,376.64 euros gross from her former employer.
Other employees who have “old” vacation entitlements can now hope for similar payments: The Federal Labor Court did not give any details on the burden of proof in its judgment;
i.e. the question of who has to prove whether the employer has pointed out that his vacation has expired - or not.
A ruling by the European Court of Justice (ECJ) from 2018, which assigned this obligation to the employer, remains decisive: In the event of a dispute, companies must be able to prove that they have instructed their employees, the ECJ ruled at the time and recommended employers to put these instructions in writing for better provability to perform.
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Remaining leave: Judgment of the Federal Labor Court is implementation of European law
The judgment of the Federal Labor Court in Erfurt is simply the implementation of what the European Court of Justice had already declared in the judgment in September.
Accordingly, employers must play an active role in the context of holiday entitlement and implementation.
If employers do not comply with this obligation, the entitlement to holiday lasts even longer.
Specifically, it is about the information obligation on the part of the employer mentioned at the beginning.
Reactions to judgment: Remaining leave no longer expires automatically
The decision of the Federal Labor Court provoked approval from the German Trade Union Confederation (DGB): "Today the Federal Labor Court confirmed what the European Court of Justice has already determined: employees need their vacation to stay healthy," said Anja Piel, board member of the DGB, the
editorial network Germany
"Under no circumstances should work overload, fear of repression, but also illness and reduced earning capacity lead to employees not taking their vacation," she emphasized.
The judgment of the Federal Labor Court on Tuesday (December 20), on the other hand, has no effect on employees who take parental leave: What you need to know about this.
(do with dpa/AFP)