Not requested leave

The BAG has decided in a fundamental judgment that an employee’s entitlement to paid annual leave generally only expires at the end of the calendar year if the employer has informed him beforehand of his specific holiday entitlement and the expiry periods and the employee has not taken the leave of his own free will.

The defendant employed the plaintiff from 01.08.2001 to 31.12.2013 as a scientist. After the termination of the employment relationship, the plaintiff demanded without success to compensate the vacation not taken by him in the amount of 51 working days from 2012 and 2013 with a gross amount in the amount of 11,979.26 euros. He had not applied for this leave during his employment.

The lower courts had granted the claim. The Regional Labour Court had assumed that the plaintiff’s vacation claim had expired at the end of the year. The plaintiff could however require payment of damages in the form of replacement vacation, because the deplored one did not follow his obligation to grant him in time vacation from itself. With the termination of the employer-employee relationship, the claim for compensation for holidays was to be settled.

The defendant’s appeal was successful before the BAG and leads to the case being referred back to the Higher Labour Court.

In the opinion of the BAG, § 7 (3) sentence 1 BUrlG provides that leave not granted and taken by the end of the year expires. According to previous case law, this had applied even in the event that the employee had requested the employer in good time but without success to grant him leave. However, under certain conditions, the employee could, under certain conditions, claim damages aimed at granting substitute leave during the employment relationship and at compensating for the days of leave not taken after the end of the employment relationship. The BAG had further developed this case law and thus implemented the requirements of the ECJ on the basis of the preliminary ruling of 6 November 2018 (C-684/16 – “Max Planck Society for the Advancement of Science”). According to § 7 para. 1 sentence 1 BUrlG, it is reserved to the employer to determine the time of the holiday taking into account the holiday wishes of the employee. Contrary to the assumption of the Higher Labor Court, the provision does not force the employer to grant the employee leave on his own initiative. However, in compliance with Article 7(1) of Directive 2003/88/EC (Working Time Directive), the employer is required to take the initiative for the realisation of the holiday entitlement. According to the case law of the European Court of Justice, the employer is obliged “to ensure concretely and in complete transparency that the employee is actually in a position to take his paid annual leave by formally requesting him – if necessary – to do so”. The employer must state clearly and in good time that the leave will expire at the end of the reference period or a carry-over period if the employee does not take it.

Therefore, if Paragraph 7 of the BUrlG is interpreted in conformity with the directive, the forfeiture of leave can, as a general rule, only occur if the employer has first specifically requested the employee to take the leave and has clearly and promptly informed him that the leave would otherwise lapse at the end of the leave year or carry-over period. Following the referral back of the case, the Higher Labour Court would have to clarify whether the defendant had complied with his obligations.

Previous instance

LArbG Munich, dated 06.05.2015 – 8 Sa 982/14

Source: BAG press release No. 9/2019 of 19.02.2019