HR File: Wish you were here

Two German nationals (Kreuziger v Land Berlin and Max-Planck-Gesellschaft zur Forderung der Wissenschaften eV v Shimizu) brought claims in the German courts in relation to their employers’ refusal to pay them in lieu of accrued but untaken holiday on termination of their employment. Referring the combined cases to the European Court of Justice (ECJ), the German courts asked whether it was permissible for national law to allow employers to refuse to make these payments on termination.

The ECJ ruled that under EU law workers cannot automatically lose accrued holiday either at the end of the holiday year or on termination unless the employer has, in good time before the end of the relevant period, ensured that they were given an opportunity to take them and provided sufficient information about the circumstances in which their holiday would be lost. The ECJ also stated employers must encourage workers to take their full holiday entitlement. The burden of proof is on the employer to show that it has done so.

What should employers do?