by Regina Wank, dpa
Good news for employees: The European Court of Justice (ECJ) strengthens their backs when it comes to the statute of limitations on holiday entitlements. The ECJ warned employers on Thursday that they must inform employees that vacation could expire. Otherwise, the entitlement to vacation remains in certain cases, the judges in Luxembourg announced. (C-120/21; C-518/20; C-727/20)
The German Trade Union Confederation (DGB) welcomed the verdict. “Persistent work overload on the one hand, fear of repression on the other, but also illnesses and reduced earning capacity must not lead to employees not being able to take their vacation and it ultimately being forfeited,” said DGB board member Anja Piel. In view of the shortage of skilled workers, employers should have a high interest in employees getting the rest they deserve and staying healthy.
The background to the judgment are three cases from Germany. In one case, the plaintiff said she could not take her vacation due to the high workload and demanded compensation for the vacation days. Her employer argued that the holiday entitlements were statute-barred after the three-year period customary in civil law. The ECJ confirmed this in principle: The employer has a legitimate interest in not being confronted with demands for vacation or financial compensation for vacation not taken after three years.
According to the judges, however, there are restrictions: the employer must take precautions to ensure that such late applications do not occur. This includes certain notification and request obligations, such as pointing out that vacation will soon expire. The employee is the weaker party. That is why the responsibility for enforcing the holiday entitlement should not lie solely on his shoulders.
The other two cases relate to holiday entitlement in the event of illness. The plaintiffs contend that they are entitled to paid leave for the year in which they were incapacitated or unable to work for health reasons. The first is about an employee who complained because, in his opinion, his employer still owed him 34 working days of vacation for 2014, which he could not take for health reasons. The employer argues that the unused vacation expired after the end of the carry-over period in 2016.
In the second case, an employee became unable to work in 2017 and did not take all of her vacation for that year. According to the information, the employer had neither asked her to take her vacation nor pointed out that vacation that had not been applied for could expire at the end of the calendar year or transfer period.
According to the ECJ, one must recognize the difficulties that arise for the employer when employees are absent for long periods of time and holiday entitlements accumulate. 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. Here, too, the ball is in the employer’s hands: he must inform his employees of the imminent expiry of their vacation. Otherwise the entitlement to holiday would be undermined in terms of content.
However, the judges did not say when and how often the employer must indicate the vacation. The Federal Labor Court will make a final decision on the cases in a few months. (dpa/rw)