Vacation entitlement this is how you should deal with remaining vacation handwerk magazin

Employee vacation planning Vacation entitlement: Here's what you should do with remaining leaveMany employees take vacation days from the old year into the new year – and employers allow it. However, this is not correct. The legal requirements on the subject of remaining vacation are clear. handwerk magazin explains how employers proceed correctly.

By Andrea Nasemann

Vacation entitlement this is what you should do with remaining vacation handwerk magazin

An employee's vacation days can no longer simply expire. – © anyaberkut/iStockphoto.com

– Reasons for special leave: When employees get time off – Vacation: When you may contact your employees – Vacation: When to deny it to employees

employees have a Right to vacation. Employers must ensure that their employees make use of this. You can even contractually allow more vacation days than specified by the German Federal Vacation Act (BUrlG). Every year, the question arises as to what actually happens to vacation days that have not been taken by the end of the year.

Does the remaining leave expire and if so, when??

The Federal Leave Act provides much more rigid regulations for this than many employees believe:

"Vacation must be granted and taken in the current calendar year. Carryover of vacation to the next calendar year is only permitted if justified by urgent operational reasons or reasons relating to the employee's person. In the case of carryover, vacation must be granted and taken in the first three months of the following calendar year." (Federal vacation law § 7, paragraph 3)

In concrete terms, this means that the annual leave must be taken in the current calendar year. A Carryover to the next year is only possible in exceptional cases possible, and even then, the remaining vacation must be taken no later than 31. March of the following year to be compensated.

These exceptions are Urgent operational reasons or reasons relating to the employee's person. Only in these exceptional cases can vacation be carried over to the next year at all. But what exactly does that mean?

Urgent operational reasons are:

– major orders from the company that are tied to deadlines or seasons, – technical or administrative problems in the company's operations, – significant absences in the workforce due to sickness.

Urgent personal reasons are

– Incapacity to work, – Illness of a relative who must be cared for, – Illness of the partner with whom the vacation was to be spent, – Loss of vacation due to parental leave.

The ruling

If the employee does not take his vacation even within the carryover period, the vacation expires. According to the case law of the European Court of Justice and the Federal Labor Court. However, this is only the case if the employer also specifically requests the employee during the current calendar year to, to take his vacation at the latest by 31. March of the following year and unambiguously indicates that the vacation will otherwise be forfeited (ECJ of 06.11.2018, C-619/16 and C-648/16 and BAG dated 19.02.2019, AZR 541/19).

If the employer does not inform the employee of this and the employee does not apply for leave, he thereby loses the right to be does not automatically forfeit his vacation entitlement. Was he z.B. unable to take his vacation, his entitlement expires on 31. March of the following year does not: It converts then into a claim for damages in money.

Unfortunate consequence for the employer:

If employees have not taken vacation in some years since 2003 and have not been instructed accordingly, the vacation entitlement still exists in principle today. Whether vacation claims can become time-barred has not yet been clarified by the supreme court. In practice, vacation claims from 2016 are currently considered not yet time-barred.

No vacation request – no vacation

If the employee, however, of his or her own free will on his paid vacation waives although he could have taken it and his employer has also paid him for it pointed out has, he can also claim financial compensation for the vacation not taken does not demand financial compensation.

In case of illness, the vacation (initially) does not expire

If an employee cannot take his vacation because he is sick, it does not expire at the end of the year. This was decided by the European Court of Justice (ECJ) in 2009 (C-350/06, C-520/06). If the employee remains thereafter the If the employee is ill during the first three months of the following year, the vacation entitlement continues to exist. Thereafter, the vacation must be taken promptly in the current calendar year.

However, the European Court of Justice restricted this in another ruling in 2011: vacation saved up due to illness expires 15 months after the end of the vacation year (Az. C-214/10). With reference to this ruling, the Federal Court of Justice also ruled in 2012 that leave after a long illness on 31. March of the year after next expires (9 AZR 983/07).

Residual vacation during the probationary period

If an employee cannot take his or her vacation due to a six-month probationary period, the remaining vacation may still be taken until the end of the following year be taken.

Residual vacation after termination

A fundamental distinction must be made here between two variants:

The notice of termination is given by 30. June of the calendar yearThe entitlement to residual leave exists both in the case of self-termination and in the case of termination by the employer. Termination in the first half of the year results in a right to one-twelfth for each month worked. If the leave can no longer be taken in full before the employee leaves, the leave must be compensated in cash. The remaining days can then be taken to the new employer. The termination takes place after the 30. June of the calendar year: As of this date, there is a full entitlement to the vacation stipulated in the employment contract. In order to do this, the employee must have worked for the company for at least six months. In the event of a change of company, the new boss is usually informed about the vacation days already used, so that vacation days are not taken twice.

Money instead of vacation is generally prohibited

Financial compensation for leave not taken vacation days, this sounds tempting, but is not permissible. Reason statutory minimum leave serves for recreation and must therefore be taken by the employee. It may be paid out only then, if the employment relationship has been terminated and the vacation can no longer be taken in whole or in part. One speaks then of vacation compensation. Therefore, the remaining vacation should actually be taken after notice of termination has been given. Only if there is no longer any possibility for this in the existing employment relationship, the vacation is settled after the end of the employment relationship. amount: it is based on average earnings in the last 13 weeks before termination of employment.

The practical consequences

With the ruling, the ECJ obligates the employer, to take appropriate and concrete organizational measures, to allow for annual leave. The employer is responsible for Obligation, to inform the employee about the expiry of the vacation as well as his vacation compensation entitlement inform the employee in good timen.

Tip:To avoid claims for compensation to avoid and no Compensation for vacation employers should inform all employees in good time in the current year about the normal expiry of vacation entitlement on 31.12. and about the transfer case to the 31.03. Sufficiently to instruct .

The new process

As an employer, you should check the vacation entitlements of each employee individually each year, instruct them demonstrably about their vacation entitlements and inform them personally about the deadlines as well as the consequences thereof. You must also refer to entitlements carried over from the previous year. It is best to take care of this right at the beginning of the year.

Leeway for entitlements above the minimum leave

All of the regulations presented here apply to the legally stipulated minimum leave . Independently of this, it can be agreed by collective bargaining that leave in excess of the statutory minimum leave can be carried over to the first quarter of the following year without having to give a reason for this. Likewise, it can be agreed for this additional leave whether and when the remaining leave is forfeited.

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