Does your boss know how to prevent holidays in the best possible way? From now on that should be over. Because remaining leave that the employer does not point out no longer becomes statute-barred. You need to know that.
Two judgments of the Federal Labor Court in December 2022 (Az. 9 AZR 245/19 and Az. 9 AZR 266/20) have once again significantly strengthened the rights of employees with regard to remaining vacation time. If the employer has not explicitly informed the employee of the remaining vacation time, vacation entitlements from previous years can still be asserted. What that means and who might benefit now.
What is changing specifically – and what was the regulation like before?
Vacation no longer automatically expires three years after the end of the vacation year. The employer must now explicitly pay in advance before the limitation period begins. “The employer has a duty to say: Take your vacation, otherwise he’ll be gone,” explains legal expert Till Bender from the legal protection of the German Trade Union Confederation (DBG). So there is a so-called notification obligation.
If the employer does not point this out, the holiday entitlement remains. In the event of a dispute, the employer must prove that he has informed the employee of the remaining leave. “The burden of proof lies with the employer,” says attorney Timm Lau from the Saarland Chamber of Labor.
How does the employer have to comply with this notification obligation?
The court left open whether a formal cover letter is necessary. “There are no formal requirements for the notification obligation,” says Bender. “But the employer would do well to put the information in writing.” Because the request must be serious and emphatic. Specifically, the court announced: “The employer must enable the employee to exercise the holiday entitlement.” Lau advises employers to mail the letter in person if in doubt or to request a confirmation of receipt.
What is changing in relation to previous employers?
Employees can also request that vacation days not taken be paid out when their employment relationship has ended. “Theoretically, holidays are no longer time-barred,” says lawyer Timm Lau.
How useful is it to legally assert claims retrospectively?
Lawyer Till Bender advises caution. “I would not currently advise employees to sue for claims from 25 years ago,” he says. Especially if the employment relationship continues. There are still too many unanswered questions. The Saarland Chamber of Labor also sees “a lot of uncertainties and pitfalls” in relation to the retrospective claim.
On the other hand, Bender would give employees who have left the employment relationship a clear recommendation to sue. “A lawsuit can be really worthwhile,” says the lawyer. “The proceedings before the BAG, for example, involved 101 vacation days and a sum of over 23,000 euros.”
Lau from the Saarland Chamber of Labor advises keeping an eye on the size. Is it 5 days or over 70? In the second case, the claim is so high that a dispute could be worthwhile. In the first case, probably not. If the remaining unused vacation is also a long time ago, the chances of a positive “outcome” decrease even further.
What applies to current vacation planning?
In short: Significant innovations are not associated with the judgments. However, one piece of advice remains: “If possible, don’t take your vacation with you, just don’t pile it up,” advises Bender. Accumulating vacation time is also often critical in the event of a company’s insolvency, because in this case the employee runs the risk of not seeing any more money. “What you have taken, no one can take from you,” says Bender.
However, the judgments could have an indirect advantage: the pressure on employers to advocate vacation is growing. “If that’s not the case, I advise employees to contact the works council,” says Lau. He can seek dialogue with the employer and negotiate better conditions for all employees – without an individual having to jeopardize his relationship with the employer.
What questions are still open?
The main thing that remains unclear is what happens in the case of a long-term illness. In the case of illness, the special feature has so far applied: the entitlement is not only extended as usual until March 31 of the following year. If someone is unable to take their vacation again because of illness, the entitlement remains in place until March 31 of the year after next.
The following question now arises: “Assuming that an employee is only present for two weeks in the first half of the year and then no longer, does the employer have to inform him of the remaining vacation?” says Till Bender.
