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News from the ECJ regarding holiday consumption

The European Court of Justice (ECJ) has stated in the case (ECJ of 29.11.2017 - case C-214/16 King) that entitlements to leave may only come under the statute of limitation if the employer actually encourages the employee through "adequate information to take the holidays in time". The burden of proof lies with the employer. The employee could be prevented by the pressure within he employment relationship from insisting on his vacation right.

What impact does the decision have on Austrian holiday law?

In Austria, holidays can only be consumed in agreement between employer and employee. The employee may therefore only make proposals as to how he/she wants to consume the holidays. Only over a certain amount a so-called "company leave" may be stipulated in the service contract or in a works agreement. The majority of the entitlement must remain freely disposable within the employee´s discretion.

So far, HR departments have informed employees about the impending expiration of holiday entitlement and have asked employees to submit proposals for holiday leaves. With this approach, HR departments also aim to keep control over the accruals for holiday entitlements.

As a result of the decision of the European Court of Justice, employers will be all the more incentivized to demonstrably ensure that employees claim their holidays before their entitlement to it expires or to indicate to the employees to consume their holidays during the current working year.

When does the holiday entitlement expire in Austria?

In Austria employees may spend their holidays within 3 years. By law, the claim is valid for 5 weeks per year. If you are employed in a company for more than 25 years, you will be granted a 6th week. Under European law, employees are only entitled to 4 weeks per year. The ECJ ruling and thus the strengthened workers' rights, which result from this current judgment, are thus valid in the period of three years for every 4 weeks of holiday entitlement.

Should you have any questions, please contact Dr. Ingrid Korenjak.

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