Even death doesn't cause holiday leave in Germany to expire, court rules

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Even death doesn't cause holiday leave in Germany to expire, court rules
Germans in a favourite holiday destination: Mallorca. Photo: DPA

On Tuesday the European Court of Justice ruled on a case concerning holiday leave in Germany. The case involved the rights that an employee, as well as the deceased spouse of an employee, has to holiday leave.


As part of a case on holiday rights, the court ruled that an employee may not automatically lose his or her acquired rights to paid annual leave because he or she has not applied for leave. Heirs are now also entitled to their deceased spouses' unused leave.

In its ruling, the the European Court of Justice (ECJ) explained that the right to leave under EU law could only expire if the employer could prove that he had adequately informed his employee and put him in a position to take the leave.

In Germany it’s the law for full-time workers to receive at least 20 days of paid annual holiday leave per year.

SEE ALSO: Vacation days in Germany: what to know about your rights as an employee

The ruling was spurred by two cases brought to court in Germany. A former junior lawyer of the State of Berlin had decided not to apply for leave during the last five months of his legal clerkship, and demanded financial compensation before the Higher Administrative Court of Berlin-Brandenburg.

His employer, however, argued that he had not been prevented from taking leave and, therefore, that his demand for compensation was invalid.

In addition, a former employee of the Max Planck Society demanded a payment for 51 days of unused leave over the course of two years. He was denied this because he had not applied for the leave despite a request to do so.

The employee is in relation to the boss the weaker party, the court further clarified. Therefore he might feel deterred from insisting on his right to vacation.

If, on the other hand, the employer can prove that the employee voluntarily waived his right, the holiday entitlement or a corresponding compensation payment may expire under EU law. This applies to both public and private employers, they stated.

Holiday leave for deceased spouses

The ECJ also ruled on Tuesday that heirs can demand compensation payments from a deceased's former employer for holiday leave that has not yet been taken.

This applies even if such a rule is not part of a country’s law, as in the case of Germany, the judges in Luxembourg ruled.

The case was spurred by two widows in Germany, who demanded compensation for paid annual leave which their husbands had not taken before their death.

Germany’s Federal Labour Court then appealed to the European Court of Justice and asked, among other things, whether heirs were entitled to these holiday payments under EU law, although national law excluded this. 

The European Court of Justice further emphasized that legally regulated entitlement to paid annual leave has two purposes.

The first holds a legal loophole, they stated. On the one hand, it should enable the employee to recover - and this is no longer possible in the case of a death.

In addition, however, the employee has a right to payment during the holiday. This can not be withdrawn retroactively from the employee - and later also from the heirs, the court ruled, also pointing out that the decision holds for both state and public employers.



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