Leave on a Silver Platter

By Monika Birnbaum, FPS

Forfeiture of leave at the end of the year or at the end of the statutory forfeiture periods only if the employer reminds the employee.

Everyone looks forward to their leave and often schedules it a long time in advance. Leave is taken when requested unless there are illness or business reasons for not taking it. And of course, there are also employees who consider themselves indispensable and postpone and save up their leave.

But what happens to leave that is not taken? Following the decision of the European Court of Justice (ECJ) of 06 November 2018 (C-684/16 on Art. 7 RL 2003/88/EC [Working Time Directive] as well as on Art. 31 para. 2 of the Charter of Fundamental Rights of the European Union), the German Federal Labour Court (BAG) has ruled that entitlement to the statutory minimum leave in principle only expires according to Sec. 7 para. 3 BUrlG at the end of the calendar year, or a permissible extension period, if the employer has previously specifically requested the employee to take his leave in good time in the leave year, and has informed him that it can otherwise expire, and the employee has nevertheless not taken the leave of his own free will (BAG, 19.02.2019 - 9 AZR 541/15). An exception to this principle is made by the BAG (BAG, 07.07.2020 - 9 AZR 401/19) if the employee was continuously incapacitated for work due to illness until the end of the extension period.

Two questions remained unanswered, which have now also been submitted to the ECJ by the BAG - 9 AZR 266/20(A) and 9 AZR 401/19(A):

What if the employee is sick, but could have taken partial leave until the incapacity of work occurred? And what about the statutory limitation periods? Can leave that is only stipulated in the employment contract, but which the employee was not explicitly requested to take, if it does not expire within the short expiration periods (15 months after the end of the calendar year), then at least expire according to the statutory periods (three years after the end of the calendar year)?

Until this has been clarified, employers are well advised to always and without any exception give all employees, regardless of whether healthy or sick, the clear notice right at the beginning of the year or, in the case of employees joining during the year, immediately upon joining, and to offer leave on a silver platter: “Statutory annual leave is a leave that must be taken in the calendar year. Therefore, if you do not request it in the current year, it can expire.”


Monika Birnbaum

name

GGI member firm
FPS
Law Firm Services
Dusseldorf, Frankfurt, Berlin, Germany
T: +49 30 885 927-390
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FPS is one of the largest fully independent German law firms with four offices in Germany. FPS currently employs over 120 lawyers and notaries. One of the firm’s core areas of expertise is national and international litigation, as well as dispute resolution.

Monika Birnbaum's emphasis is on advising national and international clients regarding all aspects of German collective and individual Labour and Employment law. She is also active as a business mediator and has broad experience as a lecturer.


Published: Employment Law Newsletter, No.10, Spring 2021 l Photo: frank peters - stock.adobe.com

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