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WORKING IN GERMANY

German employers ‘must give notice of holidays expiring’, court rules

Employers in Germany often set strict deadlines for taking annual leave - but a new court ruling states that these deadlines could be invalid if employees don't inform their workers of the rules.

A daily planner with a reminder of an upcoming holiday
A daily planner with a reminder of an upcoming holiday. Photo: picture alliance/dpa/dpa-tmn | Zacharie Scheurer

Whether it’s a heavy workload or prolonged illness, there are plenty of reasons that holiday days can end up going unused. In many cases, they simply expire at the end of the calendar year – but are there some cases in which they shouldn’t expire at all?

According to a new decision by the European Court of Justice (ECJ) – the highest court in the EU – some workers may be entitled to compensation for their “expired” holidays after all.

In a landmark ruling based on a dispute in Germany, the ECJ has stated that deadlines for taking holidays are only valid from the date when the employer tells their employees about the rules. It means that if workers are unaware that they have to use their annual leave within a certain time, these holiday days can still be taken after the supposed deadline has passed.

The latest decision comes on the back of a similar ruling by Germany’s Federal Labour Court in 2019, which obliged employers to remind their workers to take their holiday before it expired.

The Labour Court said that the reminders should be addressed directly to the employee in writing and should inform them explicitly that their holiday days could expire if the employee decided not to take them.

READ ALSO: Why German employers will soon have to record staff working hours

Law firm dispute

In the latest case in question, a tax clerk who worked at a law firm from 1996 to 2017 claimed she was entitled to financial compensation for several days of holiday.

Her contract entitled her to 24 days of annual leave, which she said she was unable to take over a number of years because she had too much work to do.

At the beginning of March 2012, her employer certified that she was entitled to a total of 76 days of remaining leave from 2011 and previous years.

This did not expire on March 31st 2013 as usual because she had not been able to take it “due to the heavy workload in the office”, the ruling explained. 

In the following years, the employee once again did not take the full amount of annual leave she was entitled to. During this time, the employer did not remind her to take her holidays, nor did he indicate that the entitlement to leave could be forfeited if she did not take it.

Financial compensation

After the tax clerk left the firm in July 2017, she received just €3,201.38 for 14 days of leave that hadn’t been taken in 2017. 

According to the employee, at least 101 further days of leave were unaccounted for. In a court complaint, she demanded full compensation for these additional days of unused holiday.

However, her previous employer argued that the time limit for taking the holiday days had expired.

The case was initially heard by Solingen Labour Court and then by Düsseldorf Regional Labour Court. It subsequently ended up before the Federal Labour Court, who asked the ECJ to provide an opinion on whether Germany’s three-year cap on taking annual leave was compatible with European law.

READ ALSO: Bildungsurlaub: What is Germany’s ‘education holiday’ and how can I use it?

The entrance to the European Court of Justice in Luxembourg.

The entrance to the European Court of Justice in Luxembourg. Germany’s three-year cap on untaken leave is compatible with EU law. Photo: picture alliance / dpa | Nicolas Bouvy

According to the ECJ, the time limit isn’t problematic. However, it can only apply from the date that the employee is informed about the rule.

That means that, if workers are unaware that their holiday days can expire, the days can be still be taken after the three-year time limit is up. 

“Indeed, since the employee is to be regarded as the weaker party to the employment contract, the task of ensuring that the right to paid annual leave is actually exercised should not be shifted entirely to the employee,” the judgment from Luxembourg states.

The former law firm employee is now likely to be entitled to a hefty payout from her previous employer. In its own judgement, the Federal Labour Court declared that the complainant was entitled to compensation for 76 days of leave at a rate of €228.64 per day.

This equates to a payout of around €17,400 plus interest.  

READ ALSO: Which public holidays are coming up in Germany?

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IMMIGRATION

EXPLAINED: How Germany plans to make immigration easier for skilled workers

The German government has agreed on a set of reforms for the immigration of skilled workers, which will be approved by the cabinet on Wednesday. Here's what they're planning.

EXPLAINED: How Germany plans to make immigration easier for skilled workers

What’s happening?

Germany is currently facing a dramatic skilled worker shortage, particularly in the health sector, IT, construction, architecture, engineering and building services. The German government currently expects that, by 2026, there will be 240,000 jobs for which there will be no qualified candidates.

In order to help plug the gap in the labour market, the coalition government has been proposing changes to immigration law for months.

In September, Labour Minister Hubertus Heil presented plans for a new points-based immigration system, that will enable non-EU workers to come to Germany to look for work even without a job offer, as long as they fulfil certain criteria, under a so-called “Opportunity Card” (Chancenkarte) scheme.

READ ALSO: Explained: How to apply for Germany’s new ‘opportunity card’ and other visas for job seekers

Now, the coalition government has agreed on a wide-ranging set of initiatives to help remove hurdles for skilled workers coming to Germany. The points will be approved by the cabinet on Wednesday, who should then come up with a draft law in the first quarter of 2023.

What’s in the plans?

The central aim of the government’s plans is to make it easier for people from outside the EU to find a job in Germany.

In the draft paper, ministers distinguish between three so-called pillars, the first of which concerns the requirements that foreign specialists must meet in order to be allowed to work in Germany.

Until now, they have had to have a recognized degree and an employment contract, but the government wants to lower this hurdle.

The draft states: “For specialists who are unable to present documents relating to their professional qualifications or can only do so in part, for reasons for which they themselves are not responsible, an entry and residence option should nevertheless be created.” The competencies could then be finally examined once they have arrived in Germany.

A trainee electrician practices in a training centre in Cologne. Photo: picture alliance/dpa | Oliver Berg

The second pillar involves skilled workers from abroad who do not yet have a degree but already have a lot of professional experience.

For employees in the information and communications technology sector, the requirement of having sufficient German language skills would be waived, and it would then be up to the managers of the company making the job offer to decide whether or not they want to employ the skilled worker despite a lack of German language skills. 

READ ALSO: ‘More jobs in English’: How Germany could attract international workers

The third pillar is about enabling third-country nationals with good potential to stay in Germany in order to find a job. The “Opportunity Card” falls under this pillar and will involve a new points-based system, which will allow non-EU nationals to come to Germany to look for work even without a job offer as long as they fulfil at least three of the criteria of having a degree or professional qualification, having experience of at least three years, having a language skill or previous residence in Germany and are under 35.

READ ALSO: How to apply for Germany’s new opportunity card and other visas for job seekers

What other initiatives do the plans include?

The traffic light coalition also wants to do more to promote Germany as an attractive, innovative and diverse country abroad.

One initiative is to publicise job vacancies internationally and connect qualified people abroad with employers and educational institutions in Germany. 

READ ALSO: Will immigration reform be enough to combat Germany’s worker shortage?

The “Make it in Germany” portal, which has its own job exchange, will be expanded and further developed.

The government also wants to promote the German language both abroad and at home for example, by expanding digital language courses and exams.

The government also wants to simplify and accelerate the recognition procedures for foreign vocational qualifications. One of the planned measures is that the required documents can also be accepted in English or in the original language.

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