In principle, this applies to the carry-over of statutory minimum vacation from the current to the next calendar year:
The statutory minimum vacation must be granted and taken in the current calendar year, otherwise it will be forfeited.
A carry-over of (remaining) vacation to the next calendar year is possible if the vacation could not be taken for urgent operational reasons or for reasons relating to the person of an employee. Such carry-over is then made by virtue of law. An approval is not required.
Employers must enable employees to take their vacation. Therefore, they must inform employees in a transparent and timely manner about their remaining vacation and the impending forfeiture at the end of the calendar year (or by 31 March in the case of remaining vacation carried over) and request that they take the vacation. If employers fail to do so, vacation does not forfeit and is not subject to the statute of limitations.
If employers have properly enabled employees, the following applies:
- If there are no urgent operational or personal reasons for a carry-over, vacation is not carried over to the next calendar year but forfeited at the end of the current calendar year.
- Also, vacation is forfeited at the end of the current calendar year if employees have not requested vacation themselves.
- If there is no reason for a carry-over, but the employer simply refuses to grant the requested vacation, there also is no carry-over. The vacation is forfeited at the end of the calendar year.
- If there is a reason for a carry-over and the vacation is carried over to the next calendar year, it must be granted and taken by 31 March of this next calendar year. Otherwise, it will be forfeited. During such carry-over period, employers no longer have a right to refuse granting vacation. Therefore, and if vacation again is not granted during the carry-over period, it is forfeited.
If vacation is forfeited in accordance with the above, but the employer had no right to refuse vacation requested by employees and the vacation entitlement could have been fulfilled (e.g. not in the event of sickness, prevailing wishes of other employees), employees can assert a claim for damages. Such claim aims at an exemption from work (so-called substitute vacation). The entitlement to substitute vacation is only subject to the statute of limitations and not limited to a calendar year or a carry-over period. It cannot be settled in cash during the current employment relationship.
Special rules apply to vacation not granted due to sickness.
