When does the vacation entitlement expire?
So can vacation from 2018 also 2019 taken? We tell you!
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Many employees who still have remaining vacation from 31.12.2018 on December 2018, 2019 and now want to take it in XNUMX ask themselves these questions. Due to the latest decisions of the ECJ, many employees should now actually be able to consider a transfer to the following year if their employer has not informed them of the forfeiture. However, the Federal Labor Court has not yet commented on this itself. It therefore remains to be seen whether and how the Federal Labor Court will interpret this decision as part of the further development of the law. There is currently still some legal uncertainty as to the details.
Legally, the subject matter is regulated in § 7 para. 3 Federal Holiday Act. In principle, a transfer ban is regulated therein. The holiday entitlement is therefore to be granted and taken in the current calendar year. A transfer to the following year is only possible by way of exception if it is justified by an urgent company or by the employee (eg illness of the employee). In the case of such a transfer, the holiday is in the first 3 months of the following calendar year, ie until the 31. March of next year, grant and take.
As far as the tight regulation in the Federal Holiday Act. The European Court of Justice (ECJ) has ruled that the right to a holiday does not expire the following year, even if the employee was on sick leave and thus could not exercise his entitlement to paid annual leave. However, several "annual leave" holidays can not be accumulated because the leave entitlement expires at the latest after 15 months after the end of the holiday year, even if the employee continues to be incapacitated for work without interruption.
In 2017, the ECJ ruled in the King case that this expiration does not always apply after 15 months at the latest. In the case on which this decision was based, the employee had not taken any leave for years because the employer refused to pay holiday pay. The ECJ ruled that the 15 monthly period does not apply and that the entitlement to leave does not expire.
At the end of 2018, the ECJ has taken two further decisions to ensure that the German holiday right is turned on its head when it comes to the issue of holiday transfers. The question was whether the leave entitlement of the employee could be forfeited if the employee did not apply for leave at all. The ECJ has now ruled that a forfeiture of the leave entitlement in the absence of an application by the employee is incompatible with Article 7 I RL 2003 / 88 / EC and Article 31 GRCh. The claim could only be forfeited if the employee voluntarily and with full knowledge of the consequences refrained from taking his leave in good time. The employer must actually enable the employee to take the leave. An obligation of the employer to force the employee to take the vacation also does not exist. However, the employer may have to inform the employee that the claim will lapse unless he is taken promptly. A formal request from the employer may also be deemed necessary by the ECJ. The employer must therefore be able to prove in the future that he has clearly and transparently informed the employee of the forfeiture of the leave entitlement and has also given him the opportunity to take the leave.
It is therefore advisable for employers to inform employees at the beginning of the year about existing leave entitlements and their expiry and to ask them to actually take the leave. If necessary, a few weeks before the end of the year, this should be repeated taking into account the remaining leave.
For employees, the new case law provides only advantages. For example, the new case-law at the time of termination of the employment relationship may now make it more common for leave to be paid for past vacation periods. In particular, on the basis of the still recent case-law, it is to be expected that many employers fail to inform their employees about the possible forfeiture of leave entitlements. Employees should discuss this in the event of dismissal with a lawyer specializing in labor law and, if necessary, sue for a claim for leave at the relevant labor court.
If you have questions about vacation entitlement, holiday compensation or other questions on the subject Employment Law we have our labor law specialist Lawyer Michael Gabler happy to help and advice. Lawyer Gabler represents you nationwide in front of all labor courts, mainly in the cities of Regensburg and Landshut.
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