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Remaining leave period does not expire automatically, federal labor court ruling

Good for workers
The Federal Labor Court decides. the leave period does not expire automatically

The Federal Labor Court has ruled that employers cannot simply cancel unused vacation days after three years

© Andrea Warnecke / DPA

The Federal Labor Court has made a decision regarding the right to leave. As a result, vacation days no longer expire automatically.

According to the decision of the Federal Labor Court, it may be worthwhile for employees and workers to look into previous years’ holiday entitlements that were deemed to have lapsed by law. Germany’s top labor judges ruled in Erfurt on Tuesday that leave is not automatically barred after three years if employers have failed to fulfill their duty to provide information. In doing so, they implemented the European Court of Justice (ECJ) ruling into German law from September and thereby strengthened workers’ rights.

Employers must play an active role

According to an important judgment of the Federal Labor Court (9 AZR 266/20), employers must inform their employees of their existing leave rights and warn them that they will expire if they do not apply for leave. If they watch without doing anything, years later they can still be asked for vacation or remaining vacation. The three-year statute of limitations begins “only at the end of the calendar year in which the employer instructs the employee about his or her special leave rights and dates, and the employee has not yet voluntarily taken leave,” the court said. explained.

The cases

Two cases from North Rhine-Westphalia were negotiated. one related to 101 vacation days that were not taken due to overwork by the taxman over several years. In the other case, the remaining 14 days of leave after a long illness for a hospital employee, which must be completed.

Multiple lawsuits are possible

Opinions among employment lawyers differ on whether the ruling will trigger a wave of lawsuits, as well as how far back it can be looked. The court missed the deadline. He fears that “now there will be many lawsuits regarding the long-term employment relationship,” the employer’s lawyer said at the hearing. “Many employees are afraid to protect their rights in a continuous employment relationship,” says the lawyer of one of the plaintiffs. Both cases concerned holiday entitlements from 2014 onwards.

The meaning of the judgment

The Supreme Court’s decision has far-reaching implications for workers, strengthening their position in the event of a holiday dispute that has not been settled. “This often happens when the job changes or when the employment relationship is terminated for some other reason,” says Bonn employment lawyer Gregor Tussing. “Until now, some employers relied on the three-year statute of limitations, but this no longer automatically applies.”

Holiday Expiration and Statute of Limitations

In the case of disputes over the limitation period of leave, similar rules are now applied that the Federal Labor Court established on the question of the expiry of the leave period in 2019. For the first time, they forced employers to take action. they had to inform their employees “clearly and in a timely manner” of missed leave. In the rulings, the justices closed a loophole in the federal vacation law, which makes no pronouncements on these matters. Basically, by law, workers in Germany are required to take vacation in the current calendar year if possible.

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The European Court of Justice set the course

The Federal Labor Court referred the two cases from North Rhine-Westphalia to the European Court of Justice (ECJ) in Luxembourg before making its decision. He must examine whether European law allows for a statute of limitations on leave entitlements “if the employer has not in fact permitted the employee to exercise leave entitlements with appropriate request and information”. In September, the decision was clear. no, said the Luxembourg court. According to the ECJ, leave cannot become time-barred or expire in the case of long-term illness if employers fail to fulfill their information and cooperation obligations. This has now been implemented into German law. “It will not be the last decision on the right to vacation,” presiding judge Heinrich Kiel said at the hearing.

Vacation after a long illness

According to labor lawyer Tusing, the general rule is that long-term sick leave expires 15 months after the end of the leave year. On Tuesday, the court confirmed this principle. However, vacation days are not lost if employees have worked for at least part of the year and their supervisor has breached his information obligations. Employers are obliged to cooperate and have an interest in ensuring that vacation days are not accumulated and paid rest periods are not observed.


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