13 June 2014

The Court of Justice (CJEU) has had an unusual case to deal with this year after being asked by Germany's Higher Labour Court whether the entitlement to paid annual leave is lost if the worker dies.

The question arose after the widow of the recently deceased Mr Bollacke submitted an application to his former employer (K+K) for an allowance in lieu which corresponded to the annual leave not taken by her husband.

He had been seriously ill since 2009 as a result of which he was unfit to work until the date of his death. On that date he had accumulated 140.5 days of annual leave outstanding.

The company rejected the application expressing doubts that "an inheritable entitlement" could exist.

The German court asked for guidance as to whether such an entitlement should be made and, if so, whether receipt of that allowance depended on a prior application by the applicant.

The CJEU has considered this case in the context of the Working Time Directive (2003/88/EC) which provides that every worker is entitled to paid annual leave of at least four weeks and that period of leave may not be replaced by an allowance in lieu, unless the employment relationship ends.

"Receipt of financial compensation if the employment relationship ends by reason of the worker’s death ensures the effectiveness of the entitlement to leave," the court has ruled. "The unintended occurrence of the worker’s death must not retroactively lead to a total loss of the entitlement to paid annual leave."

Furthermore, the CJEU has decided that that allowance does not depend on a prior application by the interested party.

From Paul Clarke, business writer for Croner