EU Advocate General Proposes 18-Month Expiry for Long-Term Sick Employees’ Holiday Claims
10.06.2026 - 06:15:43 | boerse-global.de
Advocate General Verica Trstenjak has advised the European Court of Justice (ECJ) that member states may set a national forfeiture period of 18 months for unused holiday entitlements, after which the days would be lost without compensation.
Her reasoning revives the so-called surrogate theory. Under this doctrine, a financial payout for unused leave is merely a replacement for missed recreation — not an independent benefit. Holiday is meant for rest, she argues. Allowing unlimited stacking would turn it into a pure economic asset and burden companies with unpredictable liabilities.
Keeping up with employment-law changes is demanding, but health and safety compliance is another area where UK employers can't afford to fall behind. A free Health & Safety Toolkit gives you 9 ready?to?use tools — including risk assessments, checklists and training guides — to help you meet your obligations under the Health & Safety at Work Act 1974 and avoid costly fines. Download the free Health & Safety Toolkit
German courts test shorter limits
Germany’s labour judiciary is already moving in a similar direction. The Higher Labour Court of Rhineland-Palatinate ruled on 15 January 2020 (case number 7 Sa 284/19) that vacation claims of long-term sick workers can expire after 15 months — even without an explicit warning from the employer. In that case, an employee who had been ill since January 2016 saw his statutory leave for the relevant year lapse on 31 March 2018. The court reasoned that a reminder would have been pointless because the worker remained incapable of taking leave anyway.
Now the Higher Labour Court of Hamm has referred a related question to the ECJ for clarification, setting the stage for a Europe-wide precedent.
Special rules for disabled workers
The opinion does not affect additional entitlements for employees with disabilities. Under Section 208 of the German Social Code IX, severely disabled workers receive five extra vacation days per year, and their recreational purpose remains paramount. At the same time, they enjoy enhanced protection against dismissal.
Meanwhile, the EU Pay Transparency Directive — whose implementation deadline in Germany passed on 7 June 2026 — is adding indirect pressure. National legislation is still pending, but under certain conditions employees can already invoke the directive to request information on average salaries. That could eventually influence how holiday payouts are valued and disclosed.
Risks for informal time-off
Employers and staff should also watch the clock on unauthorised breaks. Labour-law specialists caution that using work hours for private pursuits — say, catching a 2026 World Cup match on company time — can have severe consequences. Even a few minutes of deliberate neglect of work duties, according to earlier rulings by the Cologne Labour Court, may justify disciplinary action up to and including dismissal. Flexible arrangements such as home office or extended breaks require explicit employer approval, the experts note.
