If the employer does not expressly and in good time inform employees that the vacation is about to expire and asks them to take leave, the vacation does not expire and the vacation claim does not expire (Federal Labour Court, judgment of December 20, 2022 — 9 AZR 266/20). But what about the vacation compensation claim? Does this not expire even if the employer has not fulfilled his obligation to cooperate?

From June 2010 to October 2015, an employee of a flight school had not taken any of the 30 vacation days due to him annually. The employer had not pointed out the impending expiry of the vacation. In mid-October 2015, the employee left the company as an employee and from then on provided independent benefits for his former employer. At the end of September 2019, this collaboration also ended after the former employee was involved in an accident at the flight school. He now claimed in court that his former employer should pay him vacation compensation for the unused vacation to which he was entitled to during the entire term of the employment contract.

The Federal Labor Court ruled wrongly. Yes, in the present case, the employer had not referred to the lapse of vacation. In this case, however, it was no longer a question of vacation entitlement, i.e. not the right to paid time off from work for the purpose of recreation. The plaintiff had already retired as an employee for almost four years. It was therefore only a question of the vacation compensation claim.

The case law of the Federal Labour Court on the statute of limitations on vacation cannot simply be transferred to this. There is no statute of limitations under difficult conditions. Rather, the following applies: Claims for vacation compensation expire three years after the end of the calendar year in which employment contract ends, even if the employer had not previously fulfilled his obligations to cooperate under vacation law. The former flight school employee therefore went away empty-handed. His vacation compensation claim was time-barred.

Conclusion: A clear distinction must always be made between vacation entitlement (= paid time off from work for the purpose of recreation) and vacation compensation claim (= financial compensation for vacation that can no longer be taken due to the termination of employment). You must not wait too long to assert your vacation compensation claim. You must comply with the legal limitation period of three years.