Vacation is for recovery. In stressful times like today it is more important than ever. Clear rules are essential. But German vacation law is upside down. The ECJ has thrown a lot of things into confusion. Here is an overview of the latest case law.
1. Vacation does not automatically expire
Until now, the principle has been that vacations should end at the end of the year or, at the very latest, on the 31st.3. of the following year expires. This is no longer the case. Only if the employer has clearly and timely asked the employee to take his leave and the employee still fails to do so, can his leave be forfeited. The BAG ruling, which is unambiguous in this respect (19.2.2019 – 9 AZR 541/15) was preceded by an ECJ ruling intended to ensure that all employees in the EU actually take their minimum leave (ECJ 6.11.2018 – Rs. C-684/16).
For practice, some things remain unclear. Many are now speculating as to how and, above all, by when the employer must inform the employee of the expiration of vacation so that this is still done "in good time" in the sense of the BAG. What the expert, prof. Dr. Olaf Deinert says about this, read our interview.
2. Expiry of vacation in the event of illness
If an employee is sick for a long time, it is questionable what this means for his or her vacation entitlement. For years, the BAG was of the opinion that a vacation entitlement lapses at the latest if an employee has not taken the vacation by the end of the vacation transfer period, i.e., the 31. March of the following year, was ill. The ECJ overturned this case law of the BAG because it violated the European Working Time Directive, according to which the minimum vacation of four weeks cannot expire so quickly.
Since then, the following applies: If the employee cannot take his vacation due to incapacity for work until the end of the carryover period, the vacation entitlement is initially retained as a time off entitlement.
Because the annual vacation entitlements of employees who are incapacitated for work over several years can add up immeasurably, the ECJ and subsequently also the BAG set a limit of. According to this, it is permissible and now established case law that the statutory vacation entitlement expires no later than 15 months after the end of the corresponding vacation year. This also applies if the employee's incapacity for work continues uninterruptedly beyond this period (BAG 18.9.2012 – 9 AZR 623/10).
3. Vacation and parental leave
In principle, employees on parental leave retain their vacation entitlement. However, the employer may reduce the leave. By one twelfth for each month of parental leave. The employer must declare this informally (BAG 19.3.2019 – 9 AZR 362/18). The possibility of reduction applies to statutory leave, and to collective or contractual leave only if nothing else has been regulated. This practice is compatible with EU law (ECJ 4.10.2018 – C-12/17).
4. Vacation and special leave, sabattical
Anyone who takes a sabattical or otherwise receives special leave loses their statutory vacation entitlement for this time. So now a new BAG ruling (BAG 19.3.2019 – 9 AZR 315/17), which represents a clear departure from the previous line of case law, according to which a statutory leave entitlement was granted. If an employee is on unpaid special leave for a whole calendar year, he or she is immediately not entitled to vacation leave.
5. Leave may be inherited
If the employee cannot take the vacation because the employment relationship is terminated, the vacation must be paid out. It is also called compensation of the vacation entitlement (§ 7 para. 4 BUrlG). Now the ECJ (6.11.2018 – C-569/16) even further. Even the death of the employee may not result in the loss of the vacation entitlement. Rather, the claim to compensation for leave not granted passes to the heirs. This only applies to the statutory minimum leave. For the for additional leave for severely disabled persons. The BAG has now confirmed this requirement of the ECJ in a judgment (BAG 22.1.2019 – 9 AZR 45/16).
6. Vacation may not be rounded down
In the practice of many companies, fractions of vacation days are blithely rounded off. This is no longer possible. Rounding down of leave entitlements is out of the question without a legal basis. If an employee is entitled to vacation that amounts to less than half a day, then the employee retains the fractional entitlement until the last second – according to the BAG (8.5.2018 – 9 AZR 578/17).
Only in exceptional cases should rounding off be possible if the employee has only acquired a partial leave entitlement (§ 5 para. 1 BUrlG). The BUrlG only provides for rounding up from half to full vacation days (§ 5 para. 2 BUrlG). The prohibition of rounding off applies only to the statutory minimum leave. However, the respective collective agreement applicable to the employment relationship may contain a more far-reaching regulation for the collectively agreed additional leave and fractional leave days.
7. No reduction when switching from full-time to part-time work
If an employee changes from full-time to part-time work, his or her vacation days are initially retained. This is especially true if he can no longer take his vacation before the change (ECJ 13.6.2013 – C-415/12; BAG 10.2.2015 – 9 AZR 53/14 [F]). If the employee can not take his vacation before his transition to part-time work, the number of days of paid annual leave – according to the ECJ – should not be reduced proportionately because of the transition to part-time employment. ECJ sees risk of discrimination against part-time employees.