Calculating vacation entitlement correctly datev trialog magazin

Calculating vacation entitlement correctly in every contextIt's not that easy to calculate vacation entitlement – there are separate rules for short-time work, part-time work, parental leave or maternity leave. For this reason, it is always advisable to consult with a lawyer or tax consultant – especially when it comes to a dismissal.

Calculating vacation entitlement correctly datev trialog magazin

Part-time and mini-job: Peculiarities of vacation entitlement

By law, vacation entitlement is not based on the number of hours worked, but on the number of days worked. For each working day per week, the statutory regulations on vacation provide for at least four days off, i.e. 20 vacation days per year for a five-day week and 24 vacation days per year for a six-day week. If the collective agreement stipulates more vacation, this must be taken into account accordingly. By law, someone who works part-time basically has the same vacation entitlement as someone who works full-time. Because part-time employees may not be treated worse than full-time employees. If a company grants 30 days of vacation, this figure initially applies to all employees. But the decisive factor for the answer to the question “How many days of vacation am I entitled to??”is that the vacation entitlement can only be calculated on the basis of the days worked. In the case of part-time employees, therefore, it is a question of the number of days worked per week by them. Someone who works four half days per week is entitled to twice as many vacation days as someone who works two full days.

Calculate vacation entitlement for part-time

If a part-time employee works five days a week in a company that grants 30 vacation days – six weeks – for a five-day week, the calculation is the same as for full-time employees. 30 vacation days per year divided by five weekly working days times five actual working days equals 30 vacation days. If you only work three days part-time, you are only entitled to 18 vacation days: 30 vacation days per year divided by five weekly working days times three actual working days equals 18 vacation days. Those who take vacation apply for the number of days actually worked as vacation days per week. Since a part-time employee with a three-day presence only has to take three vacation days per vacation week, a vacation entitlement of six weeks can be calculated from a total of 18 vacation days, even for part-time employees. This means that part-time and full-time employees are treated equally. The calculation for irregular working hours is somewhat more complex, but in principle it works in exactly the same way: the general vacation entitlement divided by the number of compulsory annual working days times the number of days worked results in the individual vacation entitlement.

In the event of a change of contract, the leave entitlement is grandfathered

Problems can arise if someone changes from full-time to part-time employment and there is still some leave left over. In this case, according to a ruling by the European Court of Justice (ECJ), the company cannot adjust the vacation entitlement already acquired to part-time work, i.e. it cannot reduce it de facto. In the case in question, an employee still had 29 days of vacation remaining, which the employer wanted to reduce to 17 days. The ECJ declared it impermissible to reduce vacation entitlement acquired under previous conditions. Conversely, residual leave is not taken if someone changes from part-time to full-time employment.

Calculate vacation entitlement for mini-job

The Federal Vacation Act (BurlG) also applies to vacation entitlement in a mini-job. By law, employees are entitled to 24 days of vacation in the case of a six-day week and 20 days in the case of a five-day week. In addition, the statutory regulation that they may not be placed in a worse position than other employees also applies to their vacation. If there is a collective bargaining agreement or a works agreement on the subject of leave, this also applies to mini-jobs. As with part-time employees, the number of days worked is relevant for the vacation entitlement, not the number of hours worked. So if you work two hours every day in a mini-job for a five-day week, you have a vacation entitlement of at least 20 days. If you work two days for five hours each, you are only entitled to eight vacation days. The question “How many days of vacation am I entitled to??” can therefore also be answered here solely by experts calculating the current vacation entitlement individually according to the days worked.

Calculating vacation entitlement correctly datev trialog magazin

Vacation entitlement during maternity leave and parental leave

“How many days of vacation am I entitled to??”The question of vacation entitlement during maternity leave can be answered in principle without the need for extensive calculations. Maternity protection does not change the amount of leave to which an employee is entitled. The Maternity Protection Act (Mutterschutzgesetz, MuSchG) explicitly states that periods of absence due to employment prohibitions during maternity protection are considered periods of employment. With regard to vacation entitlement, this applies both to the statutory maternity protection periods and to the period during which employees are not permitted to work during pregnancy due to an individual employment ban. Residual leave from the period before the start of the employment bans can be carried over into the current or the next vacation year and taken after the employment bans have ended. Those who go on parental leave immediately after maternity leave retain their existing leave entitlement and can take the leave after parental leave. The vacation entitlement can be calculated in detail by means of the statutory regulations on vacation, which may apply in the case of part-time employment or a mini-job.

Collective bargaining agreement may stipulate vacation entitlement

The situation becomes more complex by law in the case of a leave entitlement that arises after maternity protection during parental leave. There are hardly any employment contracts or company agreements, but the collective agreement could contain a regulation on vacation during parental leave. If there is no corresponding point here, the company has some room for maneuver. First of all, an existing vacation entitlement does not expire by law, but remains in full. If the first parental leave is immediately followed by parental leave for a further child, the existing leave entitlement is automatically transferred. According to §17 Abs.2 of the German Federal Parental Allowance and Parental Leave Act (Bundeselterngeld- und Elternzeitgesetz, BEEG), the taking of parental leave may not lead to the forfeiture of vacation, according to a decision of the German Federal Labor Court (Bundesarbeitsgericht, BAG). In addition, a further vacation entitlement may arise during parental leave. Even if the employment relationship is suspended during parental leave, there is a vacation entitlement by law, because parental leave does not affect vacation entitlement.

Company can also reduce the entitlement

However, according to the BEEG, the company may reduce the vacation entitlement by one-twelfth for each full calendar month of parental leave. If the head of the company wishes to make use of this reduction right, a corresponding declaration must be made. It must be made clear to those affected that the company intends to use the reduction option and grant reduced leave. Simply stating the reduced number of vacation days in the salary statement is not sufficient for this purpose. The declaration that the vacation entitlement will be reduced does not have to be made before the start of parental leave. It is also possible during or after parental leave, but not before applying for parental leave. Because a company can only exercise the right of choice in a meaningful way if it is known that someone wants to take parental leave and in what period of time. The vacation entitlement cannot be reduced across the board for any parental leave, but only for a specifically requested leave. After termination of the employment relationship, a vacation entitlement acquired during parental leave can no longer be reduced.

Calculate vacation entitlement for parental leave

And this is how the vacation entitlement reduced during parental leave can be calculated: If the maternity protection period ends in May after the birth in mid-March and two years of parental leave have been applied for, the company is allowed by law to reduce the vacation entitlement for the full calendar months of June to December by seven twelfths. For the following year, the vacation is zero due to the legal regulation. In the year after next, the company can only reduce the vacation entitlement during parental leave for the full months of January and February. Because parental leave ends in mid-March. If the vacation entitlement is the regular 30 days per year, the company can therefore cancel 52.5 vacation days for 21 months of parental leave. If the company waives its statutory right to reduce vacation, the vacation entitlement during parental leave remains in full and does not expire.

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In order to be able to calculate the leave entitlement exactly or not to make any formal errors in the intended reduction, the support of the lawyer's or tax consultant's office should always be taken up. This applies in particular if the first parental leave is to be followed by a further parental leave due to the birth of another child. It must also be clarified how vacation already taken in excess before parental leave can be offset later due to the reduction and how remaining vacation entitlements are to be settled after leaving the company. If necessary, the subsequent declaration of reduction after termination on the part of the employee could also be sensvll. .

Leave entitlement in the event of short-time working and illness

A complex topic is also the vacation entitlement during a phase of short-time work or in the case of a longer illness. While there is a clear legal regulation for the entitlement to new vacation during maternity leave or parental leave, the situation is less clear in the case of short-time work. On the occasion of the Corona pandemic, the Federal Labor Court has recently ruled that the loss of full working days due to short-time work may be taken into account when companies calculate employees' vacation entitlement. In this specific case, the plaintiff was entitled to 14 vacation days with an agreed three-day week. However, she was completely exempt from work duties for three months due to short-time work agreements. Had to work a total of only five days in two further months. Therefore, the company reduced the vacation entitlement to 11.5 working days due to short-time work. The Federal Labor Court held the recalculation to be legal. Business owners should clarify with experts in labor law whether and how they can reduce their employees' vacation entitlement in the future due to short-time work.

No infinite leave entitlement in case of illness

The question “How many days of vacation am I entitled to?” requires rather complex answers?” with regard to vacation entitlement in the event of illness. In principle, vacation entitlement arises qua law during illness. Just as for six weeks of illness, the company continues to pay wages. In addition, employees who become ill while on vacation can have the sick days credited to their vacation account. They can then take their vacation at a later date. However, there are exceptions – if you have been ill for a long time, your vacation entitlement is different. On the one hand, the period in which vacation days already due can be taken is extended. According to a ruling by the Federal Labor Court, they can still be claimed 15 months after the end of the vacation year, because those affected were unable to take vacation during the illness and an earlier forfeiture would be a disadvantage.

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At the same time, however, the court has set a time limit for the accrual of vacation days. Accordingly, the entitlement to vacation expires 15 months after the end of the vacation year in the case of long illness, even without a regulation in the collective agreement. The vacation entitlement in case of a long illness can then be calculated as follows: Someone has been on sick leave for work since 2016 and returns in mid-2020. Then there is only a vacation entitlement for 2019 and proportionately for 2020. In contrast, the vacation for 2016 expired in March 2018 due to the legal regulation or court decision, the entitlement of 2017 in March 2019, the entitlement for 2018 in March 2020. However, such cases should always be assessed by experts.

Calculate the vacation entitlement in case of dismissal

The following applies to vacation entitlement in the event of termination: There is a difference between leaving in the first or second half of the year. Anyone who leaves the company by 30. If a person leaves the company in June, he is entitled to his pro rata annual leave – one twelfth per month. If, for example, someone with a vacation entitlement of 25 days leaves the company on 31 December of the current year, he or she is entitled to the full vacation entitlement for the current year. May off, the calculation looks like this: Five months divided by twelve months results in the factor 0.42, times 25 vacation days results in the entitlement of 10.42 vacation days. Caution: Rounding off is not permitted without a clear contractual provision. On the other hand, anyone who leaves from July onwards has, by law, the full vacation entitlement for the current year if the job was already taken up in the previous year – and therefore more than six months ago.

An exception is made for employment contracts that extend the pro rata entitlement to the whole year per "pro rata temporis" rule. This clause states that the company will only grant leave on a pro rata basis in the year in which the employee joins or leaves the company. In the event of termination at 30. September with a vacation entitlement of 30 days could be calculated like this: Nine months divided by twelve months results in a factor of 0.75, times 30 vacation days results in an entitlement of 23 days when rounded up. Per the "pro rata temporis" rule, the company may grant seven fewer vacation days. Attention: According to the Federal Vacation Act, a minimum vacation of 20 days applies to a five-day week. The company must not fall below this level when terminating employees in the second half of the year, despite the "pro rata temporis" rule. An appropriate formulation could look like the following, but should always be agreed with the law firm. "If you leave in the second half of the year, your vacation entitlement is divided in two. The reduction only takes place if this does not result in the legally prescribed minimum leave being undercut."

Calculating vacation entitlement correctly datev trialog magazin

This is how the financial compensation is calculated

As a general rule, employees should use vacation in the current year and carry as few remaining days as possible into the next year. In exceptional cases, a transfer is feasible. In this case, the employees must be reminded that they still have old leave – and need the opportunity to take it. These days cannot be forfeited without a reminder. Particularly in the event of termination, vacation entitlement often arises in the form of remaining vacation from the previous or current year that can no longer be taken on a regular basis. In this case, the employees concerned are entitled to financial compensation, known as vacation pay. This is calculated on the basis of the average earnings of the last 13 weeks prior to the start of the leave or resignation. Overtime payments are not included in the calculation, but commissions are. The monthly gross salary times three divided by 13 gives the value of the working week, divided by the working days gives the value of the working day. This is then multiplied by the sum of the remaining days of vacation and results in the payment amount.

Set off against vacation entitlement in writing

The company is not allowed to deny employees their vacation entitlement in the event of termination or to cash in vacation that has already been granted. An exception applies if the departing person has to train the successor. In that case, management can insist on not granting any remaining leave and pay financial compensation. Those who give ordinary notice of termination can postpone the date of departure by the amount of vacation entitlement in order to avoid compensation claims. Termination without notice, i.e. extraordinary termination, does not invalidate the general vacation entitlement. It is very important to have the matter examined by a lawyer if someone receives notice of termination after a long period of incapacity for work. It is then not only a question of whether or how the termination is possible. The experts should also clarify how to proceed with the usually extensive remaining leave. The following generally applies: If employees who are unable to work are given notice of termination, the statutory vacation entitlement must be compensated. Additional leave is only forfeited if this has been contractually agreed upon.

Often, employees are given time off after being dismissed. Or the offer to leave the company immediately in return for severance pay. In these cases, the lawyer should formulate a watertight agreement. It must be clear from the statement, for example, that the irrevocable leave of absence also offsets the vacation entitlement. Or that the remaining vacation entitlement is compensated with the severance payment in the event of a termination. If this is not clearly set out in writing and in a legally secure manner, former employees could otherwise later claim compensation for the vacation not taken.

Also consider special cases for vacation

In addition to their regular leave entitlement, employees have the option of requesting special leave for various situations. They are entitled to it, for example, for moving house, giving birth, getting married or looking after sick children or relatives. Involvement in voluntary work cannot be credited to regular leave either; in many cases, employees are entitled to time off for this. And how entrepreneurs deal with the ie of Ramadan is a question of agreement with their employees.


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