Holiday entitlement: How employees can now reclaim remaining holiday entitlement

Good news for employees: The Federal Labor Court in Erfurt has ruled that the remaining leave of employees can no longer automatically become statute-barred after three years (Ref.

Holiday entitlement: How employees can now reclaim remaining holiday entitlement

Good news for employees: The Federal Labor Court in Erfurt has ruled that the remaining leave of employees can no longer automatically become statute-barred after three years (Ref.: 9 AZR 266/20).

The judges of Germany's highest labor court made it clear with the judgment that employees can still claim their holiday entitlement years later. They also implement decisions of the European Court of Justice. Capital explains what the ruling means for workers:

The plaintiff worked between 1996 and 2017 as a tax clerk and accountant in a law firm. She did not take all of her annual leave of 24 working days. For the 2011 calendar year, she was therefore granted a holiday entitlement of 76 days. At the time, her employer assured her that the remaining leave would not expire on March 31, 2012, because she was unable to take it due to the high workload.

However, instead of gradually reducing the remaining vacation days, the plaintiff accumulated more vacation days and in the end demanded 101 vacation days worth around 23,000 euros. Because the employer refused to pay this, the woman sued and appealed twice before the case came to the Federal Labor Court. She got it right there.

Does vacation really never expire?

no Vacation lapses or continues to become statute-barred if the employer has informed the employee of the vacation entitlement in writing in good time and has informed the employee that it will expire if the vacation entitlement is not taken. This tip can come from the HR department or the supervisor. It is also possible that the reference is on the payslip.

It is important to know that it must be a complete sentence. A purely numerical listing of vacation days already taken or available is not enough, says Nathalie Oberthür, a specialist lawyer for labor law. If the notice of the remaining leave does not come until October, it is too late. It should ideally be communicated to the employees at the beginning of the year.

The European Court of Justice is also pushing for timely information. Accordingly, employers must also inform employees who have been ill for a longer period of time about their entitlements.

The Federal Holidays Act provides that holidays are to be taken in the current calendar year - this applies to both the statutory minimum holiday of 20 days and all other contractually agreed vacation days. Employees can only transfer it to the next year and take it by March 31 for urgent personal or operational reasons.

Some companies voluntarily allow their employees to carry vacation time into the first quarter of the following year. If there are no actual reasons, employees are not entitled to it.

Yes. The current judgment has no effect on companies that require their employees to reduce vacation by the end of the calendar year.

However, the prerequisite is that the companies have fulfilled their obligation to inform and have informed the employees that their vacation will expire if they are not taken. If they don't, the holiday carries over to the next year. It cannot become statute-barred and employees can demand it. Unless otherwise agreed, this applies to the entire holiday, i.e. also to the holiday that is granted in addition to the minimum holiday of 20 days.

A wave of additional claims by employees is not to be expected according to the assessment of specialist lawyer Oberthür. "Such cases, in which employees do not take vacation for years and accumulate it, are atypical," Oberthür told Capital.

However, the verdict can certainly be relevant for so-called bogus self-employed and mini-jobbers. If it turns out after a few years that the self-employed actually had a permanent employment relationship, many vacation days may have accumulated over this period. The same applies to mini-jobbers, who sometimes had no opportunity to take time off and were not informed of their holiday entitlement by the employer.

Anyone who wants to claim back vacation entitlement from the past must go to their supervisor and report their vacation entitlement. If it is not granted, the employee must sue for it.

If the employer rejects the claim and declares that it has been paid, he must prove when and which vacation days were taken. Nevertheless, according to Oberthür, it is advisable to keep a precise book of the number of outstanding vacation days.

It is also important to know that the contractually agreed additional vacation time must be paid out if the employee so desires. With the statutory minimum leave of 20 days, this entitlement does not usually exist.

This article first appeared here on Capital.de.

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