Holiday Pay – lost leave?
11 November 2018
The Court of European Justice has held that if a worker doesn't apply for the minimum annual leave due under EU law during a leave year, the right to that leave is not lost at the end of the year.
Unless the employer diligently gives the worker the opportunity to take it, then the leave is not lost, held the CJEU in the case of Max-Planck-Gesellschaft v Shimizu.
With thanks to Daniel Barnett's Employment Law Bulletin for its summary of the case.
Mr Shimizu worked at the Max Planck Institute, a private scientific support institution in Germany, until 2013. He brought a claim for unpaid holiday from 2011 and 2012. Under German law, he lost the right to carry over untaken leave from one year to the next. The German Federal Labour Court referred two questions arising to the CJEU.
The CJEU held that the Working Time Directive requires that if a worker does not exercise the right to paid annual leave in any year, leave should not automatically be lost unless the employer has 'diligently' brought it to the worker's attention that leave will be lost, the burden of proof falling on the employer. Employers need not require employees to take leave but must inform them accurately and in good time of the right.
Furthermore, although the employer was a private institution, the right to paid leave was still enforceable between private parties, rather than only against State bodies, although it comes from a Directive, as the right to annual leave is in the EU Charter.