Fall in vacation in the event of illness & disability
At the presentation of the Federal Labor Court, the Court of Justice of the European Union should clarify whether and under what conditions the right to paid annual leave of an employee, who has been disabled in the course of the holiday year, can fall into disruptive incapacity for continuing work for 15 months after the end of the vacation year or, if necessary, at a later date. The same question also arises when the full disability occurs ( BAG of July 7, 2020 - 9 AZR 401/19 ).
Continuously incapable workers complain about the residual vacation
The plaintiff employed by the defendant has been unable to work since her illness in the course of 2017. From her vacation for 2017, she did not take 14 vacation days.
The defendant had not asked the plaintiff to take her vacation, nor pointed out that unavailable vacation could expire at the end of the calendar year or transmission period.
With the lawsuit, the plaintiff demands that the remaining 14 vacation days from the 2017 calendar year are still entitled to her. She believes that the vacation has not fallen for because the defendant failed to point out the impending decay in good time. The defendant claims that the vacation entitlement from 2017 had expired at the latest at the latest at the end of March 31, 2019.
The lower courts dismissed the lawsuit.
Full disability workers
In a second case, the plaintiff, who was recognized as a severely disabled person, was employed as a cargo driver with the defendant since 2000. Since December 2014, he has been receiving a pension for full disability, which was last extended until August 2019.
Among other things, he claims that he would still have 34 working days from 2014 against the defendant.
These claims have not fallen for because the defendant did not have fulfilled their obligations, the granting and use of vacation.
The defendant, on the other hand, takes the view that the plaintiff's vacation in 2014 expired at the end of March 31, 2016. If the employee - as the plaintiff is in the event of a full disability - is long -ended for health reasons to start his vacation, the decay of 15 months after the end of the vacation year, regardless of the fulfillment of the participation of participation, occurs.
The lower courts also dismissed this lawsuit.
BAG asks ECJ for clarification
According to the BAG, it should be important for the decision as to whether the vacation entitlements of the two plaintiffs - as claimed by the respective employers - are dependent on the interpretation of Union law.
That is why the ECJ asked for clarification and preliminary ruling on this question. According to Section 7 (3) BURLG, vacation must be granted and taken in the current calendar year. A transfer of the vacation to the first three months of the following calendar year is only permissible if urgent operational or reasons in the person of the employee justified this. The BAG has already interpreted this provision on various ways of Union rights.
ECJ case law on vacation entitlement is based on the employer's obligation to provide information
Following the decision of the Court of Justice of the European Union of November 6, 2018 - C -684/16, the BAG recognized that the right to the statutory minimum leave will only be exposed in accordance with Section 7 (3) BURLG at the end of the calendar year or a permissible transfer period if the employer has previously asked the employee to take his vacation in the vacation year and that it has pointed out that Otherwise, and the employee did not take the vacation out of free part.
Decline of statutory vacation entitlements in the event of continuing incapacity to work after 15 months
In the event that the employee was prevented from working for health for health reasons for health reasons, Section 7 (3) BURLG in accordance with the decision of the ECJ of November 22, 2011 - C -214/10 also to understand that statutory vacation entitlements will expire 15 months after the end of the holiday year.
Does the 15-month period apply even if the employer is not instructed?
For the decision of the legal argument, a clarification of the question by the ECJ now requires whether the Union law is decayed after the end of this 15-month period or, if necessary, a longer period of time even if the employer did not fulfill his participation in the holiday year, although the employee could at least partially take the vacation until the incapacity to work occurs.
Tip
Oh how difficult is labor law! If one would have pointed out that no requested vacation could expire at the end of the calendar year or transmission period. Sometimes is only a question of personnel management and knowledge of the subtleties of the respective case law. So just: eyes open! We stay tuned ...
