Update on vacation rights: Employers must take action in the future!

We already reported in our article from December 3rd, 2018 that the European Court of Justice (ECJ) decided in November 2018 on the forfeiture of vacation entitlements. Three months after the ECJ ruling, the Federal Labor Court (BAG) implemented the requirements of the Luxembourg judges on February 19, 2019 (9 AZR 541/15).
The reason for the BAG's fundamental decision was a legal dispute in Munich. A scientist sued who, after the termination of his employment, demanded compensation for 51 days of unused vacation from 2012 and 2013. He demanded a total gross amount of EUR 11,979, 26 from his employer. He had not submitted an application for this leave to be granted during the current employment relationship.
According to the defendant employer, she informed the scientist of his vacation entitlements in an email. The scientist, on the other hand, denies having been informed early by email.
Due to the unclear facts, the BAG did not make a judgment in the specific case, but referred the matter again to the Munich Regional Labor Court (LAG).
However, on the fundamental question of the forfeiture of vacation entitlements, the BAG has strengthened the rights of employees: Given the case law of the ECJ, an employee's right to paid annual vacation usually only expires at the end of the calendar year if the employer transfers it beforehand informed about his specific vacation entitlement and the expiry periods and the employee nevertheless did not take the vacation of his own free will. From now on, Section 7 Paragraph 3 BUrlG must be interpreted “in accordance with the guidelines”.
What does this BAG decision mean for employers?
The ECJ ruling has already indicated that employers will face new information and notification obligations. It is now clear: If employers want to avoid having to pay out unused vacation after the end of the employment relationship in the future, they must not remain idle during the current employment relationship. Rather, they must actively approach their employees. What specific requirements must be placed on employee information will only become apparent once the fundamental ruling is implemented by the labor courts. It may not be sufficient to simply inform employees about the forfeiture of vacation entitlements using a form, for example in the employment contract.