Taking delayed holiday

Two employees in Germany who worked at an airport and a hospital could not take accrued holiday because of sick leave.

They could have taken their holiday before they got sick, but the companies had not encouraged it or otherwise ensured that the holiday was taken.

Under the German holiday rules, accrued untaken holidays were lost 15 months after the end of the holiday year. This applied even if employees had been prevented from taking the holidays, for example, due to reasons such as long-term sick leave. The rules meant that holidays were lost irrespective of whether the company had ensured that the employees could take their holidays.

Tour of the holiday rules

The European Court of Justice initially emphasized that employees are entitled to four weeks of paid holiday under the EU rules. It also noted that companies are responsible for ensuring and encouraging employees to actually take the holidays.

Employees cannot lose the right to accrued untaken holidays if this obligation has not been satisfied from the company’s side. Therefore, rules stating that holidays are lost – without companies having encouraged or ensured it was taken – are unlawful.

IUNO’s opinion

This case confirms that national holiday rules are contrary to the EU rules if employees lose their holiday without companies having encouraged or ensured that it was taken. Consequently, employees are entitled to take the holidays in the new period instead of losing the days or receive compensation.

Unlike Norway, there are rules that untaken holidays can be lost within a given period in Denmark and Sweden. This case may therefore impact similar cases in Denmark and Sweden.

IUNO recommends that companies communicate and document that employees are encouraged to take accrued holiday during the year and again well in advance before the end of the holiday period. 

[The European Court of Justice in the joined cases C-518/20 and C-727/20 of 22 September 2022]