The decisive factor in this context is whether the employer has, for example, drawn attention ahead of time to the fact that the leave will soon expire. A limitation period for vacation entitlement therefore applies if the employee has previously received a corresponding notice to use the remaining vacation days in good time.
Having vacation entitlement compensated after the end of the employment relationship
In one of the three cases, a plaintiff demanded that she receives financial compensation for the vacation days after her termination. She had not been able to take the vacation days because the workload over the years had been too high. The company argued that the claim for vacation was time-barred, as the three-year limitation period under civil law had expired. The Federal Labor Court has yet to examine whether the employer provided timely notice.
Vacation entitlement during illness
The two other cases involved a combination of vacation entitlement and illness. Both plaintiffs stated that they were also entitled to vacation for the year in which they were unable to work due to health restrictions. Under German law, vacation entitlement expires after 15 months in the event of illness. The Federal Labor Court wanted the ECJ to clarify whether the limitation period after 15 months also applies if the employer has not complied with the mandatory request. An example of a notice of this kind would be the setting of a deadline during which the leave is to be taken.
Decision of the labor court
The judges of the ECJ now stated that leave entitlements are not in fact time-barred if they arose before the incapacity for work and the employer did not comply with the timely request to take leave. The vacation entitlement of employees who have been unable to work for years therefore expires after 15 months. In the two cases described, however, the years in which the plaintiffs first became unfit for work are at issue. The decision of the Federal Labor Court, which referred this case to the ECJ, is to be made in December. The BAG is bound by the ECJ's interpretation of the law. However, according to the ECJ, there is no risk that vacation entitlements will be accumulated without restriction due to the 15-month rule.