Dismissal and late holidays

Dismissal and late holidays

"I've received a registered letter from a former employee who was recently made redundant. He's demanding that I pay him for the holiday he didn't take between 2007 and 2010. Do I have the right to refuse?

Anne, Geneva

As an employer, not only are you obliged to grant your employees at least four weeks' holiday per year of service (five weeks for employees under the age of 20), but you must also pay them their normal salary during these periods. It should be noted that longer holidays may be provided for contractually.

As a general rule and for as long as the employment relationship lasts, holidays must be taken during the corresponding year of service and must extend over at least two consecutive weeks. They may not be replaced by cash benefits or other advantages, since their purpose is to give employees time off. As a general rule, the dates of such breaks are agreed between the employer and the employee. If this is not the case, the employee may assert his or her holiday entitlement during the five years following the last day on which the full holiday entitlement could still be taken during the current year of service. It should be noted that this limitation period runs separately for each year of service, so, for example, in 2011, an employee will no longer be able to claim back all the holiday he or she has not taken since 2004.

It is only in the event of termination of the employment relationship that holidays not taken before the end of the employment relationship may be recovered in the form of a replacement monetary claim. The former employee may then assert his or her right to the replacement claim within a period of five years from the date of termination of the employment relationship, it being specified that the termination of the employment relationship does not, however, give rise to a new limitation period. If the holiday entitlement was already time-barred at the time of termination of the employment relationship, the former employee cannot claim a replacement entitlement for those holidays; the time elapsed between the last day of holiday entitlement in the relevant service year and the date of termination of the employment relationship must therefore be taken into account to determine whether the former employee is still entitled to claim a replacement entitlement.

In view of the above, you will have understood that your former employee is entitled to demand payment of the amount corresponding to the holiday not taken during the years 2007 to 2010.