Employers also have an obligation
The right to leave does not always expire
Author: Axel Witte
According to the Federal Act on Holidays, the holiday must be taken in the current calendar year. But even then it may not disappear automatically. The European Court of Justice strengthens the rights of employees in certain constellations of cases. What you basically need to know.
They should really exist: employees who do not fully use up their vacation days in a year. Whether it’s workaholics, illness or operational reasons – the reasons for this can be different, but processing holiday credit is basically the same.
In principle, according to the Federal Act on Holidays, the holiday must actually be taken in the current calendar year. The exception is the transfer of unused vacation days to the new year, if you want to save the remaining vacation in the new year, you must register your wish with the employer in the current year. Otherwise it expires on December 31st.
If the holiday was postponed in this way, the new date is usually March 31. Employees who still have free days from the previous year should catch them by this date. Because otherwise the holiday entitlement is gone. At least most of the time. Unless otherwise stipulated in the individual or collective agreement of the company.
If, independently of this, the employee and the employer agree on how to deal with the remaining leave, individual agreements are possible both in the case of a longer “usefulness period” of the transferred leave and also in the case of possible reimbursement – regardless of the amount of leave. legislation.
The employer has an obligation
Important: Employers must ask their employees to take any leave they have not yet requested and warn them that it will be forfeited otherwise. This has already been decided by the Federal Labor Court (BAG) in Erfurt. Until now, there was a period of three years during which claims for damages could be made the employee could apply.
In addition, the law does not provide for reimbursement of the remaining vacation time – unless the employee resigns from the employment relationship. The claim then becomes payable upon departure. And even if someone couldn’t take vacation due to a long-term illness, the deadline of December 31 or March 31 does not apply. The employee then has until the end of March of the following year to use up the leave. The right to vacation expires after a transitional period of 15 months (example: Vacation days from 2021 must be taken by March 31, 2023).
The European Court of Justice has set new deadlines
However, the European Court of Justice (ESD, case no.: C-120/21 among others) incorporated EU law into German law and decided that the right to paid leave does not expire after three years, unless the employer has indicated that unused leave days must be taken. In one of the cases under discussion, an accountant complained after her dismissal that the years of unused leave due to high workload are not subject to the statute of limitations, but that the previous employer must provide financial compensation.
In two cases of long-term illness with subsequent disability, the ECJ found the transfer period of 15 months to be too short. Accordingly, leave entitlements do not expire if, as in this case, they arose before the incapacity for work and the employer did not invite the employee to do so or did not allow the use of leave.
The Federal Labor Court must now review three relevant cases.