Annual paid leave: employers must make sure that employees are able to take leave, if need be by providing sufficient information

21 Feb 2019

European case law

Dorothée David

In two judgements, C-684/16 and C-619/16 on 6 November 2018, the Court of Justice of the European Union (CJEU) has provided significant clarifications about taking and losing annual paid leave.

In these cases, two employees subject to German law were refused an allowance in lieu of leave not taken at the end of their employment contract, due to the fact that they had not asked to benefit from their annual leave during the applicable reference period, respectively before the end of the employment relationships.

For the CJEU, an automatic loss of the right to annual paid leave like this is contrary to EU law, more specifically Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, which, in particular, includes respect for the following principles:

  • The mere fact that employees do not ask to take leave within the defined deadlines cannot result in the automatic loss of that leave, if the employer has not first made sure that they were actually able to take it.

To this end, the CJEU points out that, if a national provision may stipulate the loss of the right to annual paid leave at the end of a reference period, a carry-over period or the employment relationship, this is only “provided, however, that the worker who has lost his right to paid annual leave has actually had the opportunity to exercise the right (…)”.

  • The employer must ensure that the employee is able to take his annual paid leave, if need be by providing sufficient information.

According to the CJEU, the employer must “ensure that workers are in a position to exercise [their right to annual paid leave]”, including in particular by providing “sufficient information” which involves:

  • encouraging employees, formally if need be, to take their annual paid leave,
  • while informing them, accurately and in good time, that, if they do not take this leave, it will be lost at the end of the reference period or authorised carry-over period.
  • The burden of proof for this sufficient information is on the employer in the event of a dispute.

To this end, the CJEU objects to an employee losing paid leave that has not been taken if the employer cannot show that it has exercised “all due diligence” to make sure that the employee can actually take it.

On the other hand, if the employer shows that “it was deliberately and in full knowledge of the ensuing consequences that the worker refrained from taking the paid annual leave to which he was entitled after having been given the opportunity to exercise his right”, then the employee will lose leave not already taken at the end of the reference period and/or applicable carry-over period.