Bag asks eugh about forfeiture of vacation in case of illness and reduced earning capacity 2

The Court of Justice of the European Union, on a referral from the Federal Labor Court, is to clarify whether and under what conditions the entitlement to paid annual leave of an employee who became incapacitated for work in the course of the leave year can lapse 15 months after the end of the leave year or at a later date, as the case may be, if she has been incapacitated for work without interruption since then. The same question would arise if the full reduction in earning capacity were to occur.

Employee who was consistently unable to work sued for remaining leave

The plaintiff, who is employed by the defendant, has been continuously unable to work since she became ill during 2017. Of her vacation for 2017, she did not take 14 vacation days. The defendant had neither requested the plaintiff to take her vacation nor pointed out that vacation not requested can expire at the end of the calendar year or the carryover period. In her lawsuit, the plaintiff sought a declaration that she was still entitled to the remaining 14 vacation days from the 2017 calendar year. She took the position that the leave did not expire because the defendant failed to notify her in a timely manner of the impending expiration. The defendant claimed that the vacation entitlement from 2017 expired at the latest at the end of 31 December 2017. March 2019 expired. The lower courts dismissed the action.

Employee in full reduction of earning capacity

In a second case, the plaintiff, who was recognized as a severely disabled person, had been employed by the defendant as a freight driver since 2000. Since 01.12.2014, he has been receiving a pension for full reduction in earning capacity, which was most recently extended until August 2019. Among other things, he claimed that he was still entitled to 34 working days of vacation from 2014 against the defendant. These claims had not lapsed because the defendant had not fulfilled its obligations to cooperate in the granting and taking of leave. In contrast, the defendant took the view that the plaintiff's vacation not taken in 2014 was due at the end of 31.03.Expired in 2016. If the employee – as in this case the plaintiff due to the full reduction in earning capacity – is unable to take his vacation for a long time for health reasons, the forfeiture occurs 15 months after the end of the vacation year irrespective of the fulfillment of the obligations to cooperate. The first two instances had rejected the complaint in each case.

BAG asks ECJ for clarification

The BAG is of the opinion that the decision as to whether the vacation entitlements of the two plaintiffs have lapsed as claimed by the respective employers depends on the interpretation of Union law. Therefore, it has asked the ECJ for clarification. Preliminary ruling requested on this ie. According to § 7 para. 3 BUrlG must be granted and taken vacation in the current calendar year. Transfer of leave to the first three months of the following calendar year is permitted only if justified by urgent operational reasons or reasons relating to the employee. The BAG has already interpreted this provision on various occasions in conformity with Union law.

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