Every employee is entitled to paid annual leave during an existing employment relationship. The statutory minimum leave amounts to four weeks per calendar year. This corresponds to 24 working days in a 6-day week and 20 working days in a 5-day week. In the case of a shorter weekly working time, the leave is adjusted accordingly.
In addition, there may be an entitlement to further paid supplementary leave, governed by employment or collective bargaining agreements. In these cases, however, the forfeiture of leave may be regulated separately.
The Principle:
The leave entitlement is generally limited to the calendar year (Section 1 BUrlG (Federal Leave Act)).
Possible Exceptions:
The leave entitlement may be carried over to the following calendar year where "urgent operational reasons or reasons relating to the person of the employee" justify this (Section 7 (3) BUrlG (Federal Leave Act)). In this case, the leave must be taken within the first three months of the new year.
In the past, leave would lapse after the expiry of these three months if the employees had not requested time off. However, since the rulings of the European Court of Justice (ECJ) in 2022, it is clear that the right to paid annual leave may only be restricted under "special circumstances". As a rule, leave therefore no longer lapses unless such special circumstances exist.
These special circumstances may not be shifted onto the employees. The employer cannot rely on the fact that the employees have not requested leave. Rather, it is the duty of the employer actively to encourage employees to take their leave within the calendar year and to provide them with the opportunity to do so.
The employer must inform each employee individually and transparently about how much paid annual leave they still have remaining. In addition, the employer must expressly request the employee to take this leave. Furthermore, the employer must clearly and in good time communicate that the leave will lapse at the end of the reference period or of a permissible carry-over period if it is not taken.
What does this mean in practice?
The employer is obliged each year to request every employee, in good time and in specific terms, by means of a written communication requiring receipt (an email is sufficient), to take any remaining leave within a defined period (either within the calendar year or by the end of the carry-over period). In doing so, the employer must also point out that the leave will otherwise lapse.
As a rule, it is sufficient to send this request once at the beginning of the year, provided that the employer grants the leave within the stated period. It is, however, advisable to send this request at the beginning of the fourth quarter and to ensure that employees are actually able to take the leave.
For employees, the situation has improved: if no such written communication exists, the leave does not lapse. This also applies to leave entitlements from previous periods.
Attorney Ms Babette Kusche will be pleased to assist you with any further questions.
