The European Court of Justice (ECJ) could strengthen the right to vacation for employees on Thursday. The highest EU court has ruled on the question of whether the entitlement to holiday is not time-barred in certain cases. The sticking point is, among other things, how much the employer has to do his part and, for example, point out that the vacation is about to expire.
The background is several cases from Germany. Two of these 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. She did not fully use her legal leave for 2017. According to information from the ECJ, 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.
Previously, vacation days expired 15 months after the end of the vacation year if the employee was ill and unable to work. The Federal Labor Court would like to know from the ECJ whether the holiday entitlement also expires after 15 months if the employee was ill in the respective year and the employer has not fulfilled his obligations and, for example, has not set a deadline by which the holiday should be taken.
In the third case, the plaintiff, according to her own statement, was unable to 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. Here, too, the question is whether the right to paid annual leave can become time-barred if the employer does not ask the employee to take the leave.
In their Opinions of March, the Advocates General at the ECJ strengthened hopes of a valid holiday entitlement in all three cases. They emphasized the employer’s obligation to cooperate, who must point out certain deadlines. These reports are not legally binding. The ECJ judges often follow them, but not always.
