It has recently become necessary to remind your employees that they have to use any unused holiday up by the end of the year.
Previously, if the employee hadn’t taken their holiday, they would lose it and they would not be able to carry it over to the next year. However, as the case shows below, you will now need to give the employee the opportunity to use it.
Recently at the Court of Justice and European Union the case for Max-Planck-Gesellschaft v Shimizu, asked if a employee doesn't apply for the minimum annual leave due under EU law during a leave year, the right to have that leave lost at the end of the year, unless the employer diligently gives the worker the opportunity to take it.
Mr Shimizu who worked at the Max Planck Institute, a private scientific support institution in Germany, until 2013, 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. If your holiday leave ends on 31 December 2018, it is important that you remind your employees that they have to take the remainder of their annual leave entitlement or they will lose it.
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