Vacation entitlement: What is the employee entitled to?The statutory provisions on minimum leave for employees are clearly regulated and are rarely the subject of disputes before the labor court. Things often only get tricky when additional leave agreed by the company and special situations are added to the equation.
Statutory vacation entitlement and additional vacation
With regard to the vacation entitlement of employees often half and ignorance of laws and contractual clauses are thrown together. Find out everything about the actual case law here.
In Germany, each employee is guaranteed by law at least 4 calendar weeks of vacation for each full year, which corresponds to 20 vacation days for a 5-day work week. In principle, a distinction must be made between this statutory vacation entitlement and additional vacation above the statutory minimum (= additional company vacation). Business owners and employees know that additional leave is the rule nowadays and, in addition to earnings, represents a strong attraction factor for potential employees: 30 vacation days with a 5-day week is currently the average, i.e. 10 days more than required by law. Additional vacation is either stipulated in the employment contract, company agreements or collective agreements. Important in this context is the respective wording for the vacation entitlement.
If no distinction is made between statutory and company vacation entitlement, then practically all statutory regulations on entitlements and obligations apply without restriction in the same way to additional holiday. Both parties to the contract should therefore be clear about what is regulated by law and is not explicitly mentioned in the contract or other agreements.
Duration of vacation: Calculating vacation entitlement
Each employee is entitled to 4 calendar weeks of vacation per calendar year, i.e. 28 calendar days. Basis is § 3 of the federal vacation law (BurlG): Starting from the at that time (1963) usual 6-day week, the so-called legal week, with the legal working days Monday to Saturday 24 days of vacation were fixed. This paragraph is the most important legal basis for calculating all entitlements. In the case of differently agreed work rhythms, the respective vacation entitlement from this must be converted proportionately. For the 5-day week commonly used today, this results in 20 days as the statutory minimum leave. All days that are not Sundays or public holidays, including Saturdays, are considered working days.
Full-time work Statutory vacation entitlement 6-day week (incl. Saturday) 24 vacation days 5-day week 20 vacation days
Rule of thumb for a fixed number of working days per week
In principle, the following formula can be used to calculate vacation entitlement:
Unless otherwise agreed, 24 days are to be used by the legislator as the basis for calculating the nominal vacation entitlement. If the employment contract refers to "working days" or no explicit agreement has been made, six days are to be used in the denominator. If the employment contract refers to working days, the employer ames a 5-day week from Monday to Friday. Deviating from this, something else may have been agreed in the corresponding collective agreement.
Vacation when specified in "working days" for full-time employees
Example: Specification in the contract of "30 working days of vacation"
5-day week: 25 days of vacation (30/6 x 5)
6-day week: 30 days of vacation 30/6 x 6)
Vacation for mini-job (450 Euro- employment contract)
The vacation entitlement for marginally employed persons is calculated proportionally according to the number of employment days per week or month, regardless of the respective working hours. for a 1-day week: 24/6 x 1 = 4 vacation days per year (for working days)
Vacation for part-time
Part-time employees who work half days on each working day have the same number of vacation days as full-time colleagues. Part-time employees who do not work every working day receive the corresponding vacation days on a pro-rata basis – regardless of the daily working hours. If a vacation entitlement of 30 days has been agreed in the company or collective agreement for full-time employees (5-day week), the entitlement of the 1-day auxiliary also increases to 30/5 = 6 vacation days, unless other agreements have been made for the ten days of additional vacation.
Part-time with 5-day week: 24/6 x 5 = 20 vacation days per year (for working days)
Part-time with 3-day week: 24/6 x 3 = 12 vacation days per year (for working days)
In the event of a change from full time to part time or vice versa, the entitlements from the respective sections are added together. In the end, the vacation entitlement for a year can therefore also be reduced. Planning and timely arrangements help to avoid mistakes.
Vacation in case of fixed-term employment contract
A fixed-term employment contract results in the same vacation entitlement as an unlimited contract, different treatment is not permitted. However, the contract must last for at least one full month. The calculation is also based on the above formula, pro rata for each full month.
Calculation of vacation per working day
If an employee works flexibly and irregularly, on call or in shifts, the calculation is not based on an X-day week, but on a month or even the entire year. If this does not result in a whole number, half days are rounded up. It is usually more practical for all parties involved to agree on a certain number of working days and hours per month.
Statutory additional days
Statutory additional days are only granted to young people, severely disabled persons and rare special cases. There is no statutory vacation bonus for seniors, but there are companies that voluntarily grant additional days to older employees.
Who is entitled to statutory vacation entitlement?
According to § 2 BurlG, all workers, employees and persons similar to employees are entitled to vacation:
– Temporary employees – Permanent employees – Part-time employees – Full-time employees – Part-time employees – Apprentices – Volunteers and trainees – Student trainees – Voluntary interns
The only condition is that the employment relationship exists for at least one month.
waiting period in the first year
In the case of longer-term or unlimited contracts, the employee can only claim his full four weeks in the first year after he has been employed by the company for a so-called waiting period of six calendar months (BurlG § 4) and there has not yet been a change of year, see also the section on "Holiday year". An employee also acquires a right to pro rata vacation during the waiting and probationary period. For this, however, he must have worked at least one full month. What the employer grants early in vacation over and above the statutory share, for example as a motivational impetus, he can usually not reclaim again. Therefore, if your supervisor ies you a vacation ban during the probationary period, he or she is acting within the legal framework. Many companies in the free economy handle the vacation entitlement with more goodwill, while the waiting period is still customary in the public sector.
What is a "vacation year"?
From the first of January in each calendar year – then identical to a vacation year – the vacation entitlement is accrued until 30. June newly saved. Only from 1. July, the full entitlement exists until 31. December. In practice, this is particularly relevant if the employment relationship ends and residual leave is to be offset, taken or compensated for.
The employer is allowed to specify the date of the vacation?
In principle, the company decides when employees take their respective vacation, but it may not act arbitrarily in this regard. Employees' vacation wishes must be taken into account in principle. Applications may only be rejected if "urgent operational concerns or the vacation wishes of other employees who deserve priority from a social point of view conflict with this" (§ 7 para. 1 BurlG).
However, urgent operational needs must be significant and unforeseeable, otherwise the employer must make provisions, according to case law (see also this ruling on the granting of vacation). Priority of other employees may be justified by age, state of health, length of service, longer "entitlement" to vacation, family reasons such as school-age children (s. u.) or gainfully employed partner who also wants to take leave. The employer must weigh here, which is not always simple.
A Entitlement to vacation during school vacations for school-age children does not exist, but there is a preferential rank over a single employee without children. Subsequent leave after a cure or rehabilitation measure must be approved as a priority, according to the law. Here, the purpose of recreation stands above other concerns.
Are employees entitled to several weeks of vacation at a time??
Rather unusual in practice, but § 7 para. 2 BurlG is very clear in this respect: if an employee is entitled to more than 12 working days, part of the annual leave must be taken in one piece. Although at least 12 consecutive statutory working days – ergo two calendar weeks. Desired deviations from this must be agreed separately. Otherwise, the employer may refuse the long vacation only for urgent operational reasons or because of priority of other colleagues.
When is an employee allowed to take residual leave into the next year??
The vacation is intended for the current calendar year and must usually be granted and taken within this year. A carryover until the 31.03. of the following calendar year is only possible in exceptional cases for "urgent operational reasons or reasons relating to the employee". In reality, remaining vacation is often silently requested for the next year. Tolerated by granting or otherwise contractually regulated. Transferability is also partially excluded altogether.
Can the entitlement to vacation lapse?
Residual leave does not automatically expire just because it has not been applied for: According to the Federal Labor Court and the ECJ, employers must recently explicitly request employees to take leave that has not yet been applied for and clearly indicate that it will be forfeited if it is not requested. If such a request demonstrably fails to materialize, employees – including former employees – can demand payment of supposedly forfeited residual leave.
Incidentally, vacation entitlement that has accumulated in the meantime does not expire on the 31st day after a longer illness. March of the following year, but only one year later. You can find a ruling on vacation entitlement in the event of the employee's death here.
New employment contract: What to do if the vacation has already been booked? In such a situation, only early openness can help on the one hand. Goodwill of the new employer on the other hand. Vacation entitlement only exists after the end of the first month for one twelfth of the annual vacation, apart from this the six-month waiting period applies. In such a situation, it is advisable to inform the new employer about the booking as early as possible (if possible before signing the contract) and to ask him to grant the leave. In any case, a corresponding certificate from the ex-employer ensures that vacation claims cannot arise twice. Instead, they are simply taken along (§ 6 BurlG).
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When is there an entitlement to unpaid leave?
Unless agreed otherwise, an employee cannot demand that he or she be allowed to take unpaid special leave.
– Care of a relative – Care of a sick child under 12 years – In emergency situations through no fault of their own
If the boss grants temporary suspension of the employment relationship, he may, according to the Federal Labor Court, reduce the vacation entitlement of the employee on leave proportionately. This can even lead to the complete elimination of annual leave after one year. No vacation entitlement arises for work not performed, according to case law.
Employers can also reduce the statutory vacation entitlement on a monthly basis during parental leave, but must declare this to the employee in a timely manner (cf. Federal Parental Allowance and Parental Leave Act (Bundeselterngeld- und Elternzeitgesetz BEEG). The reduction is not possible, however, if the parent works part-time during his parental leave, then there is full entitlement to leave. Since parental leave can now be arranged quite flexibly, it is important to keep track of it in order to avoid miscalculations.
May be exercised on vacation a side job? According to the European Court of Justice, the sole purpose of leave is to rest and recuperate. Section 8 BurlG also prohibits gainful employment that is contrary to the purpose of the vacation. This does not include work on one's own house, activities in the context of "vacation on the farm", help in the family business, favors and the like. A vacation job without permission can entitle to a warning, possibly also to dismissal by the employer, but not to a reduction of the vacation pay. Read more on the subject of inadmissible secondary employment here.
Compensation for vacation: When may vacation be paid out??
In principle, vacation may not be paid out, it must always be used primarily as free time. Only if this is not (completely) possible, there is a claim for compensation, because remaining leave cannot simply expire (ECJ), even in the case of termination without notice or even death. The corresponding vacation pay must be paid to the departing employee or. whose heirs are paid out if vacation days are left over and cannot be taken. This claim becomes time-barred after three years (§ 195 BGB). Conversely, you as an employer cannot reclaim vacation pay for vacation already taken. This also applies to additional company leave, unless otherwise contractually agreed. The decisive factor here is also the accrual principle in the annual vacation account: Proportionate entitlement up to 30. June – full vacation pay from 1. July.
Contractual additional leave
Employment contracts and other (company) agreements are allowed to extend the legal entitlement, but never to undercut it in order to be legally effective. Collective bargaining agreements, on the other hand, can also result in less favorable conditions.
There is a great deal of room for maneuver beyond the Federal Vacation Act. However, there are some pitfalls to be aware of: Even individually agreed additional vacation in the employment contract leads to a binding vacation entitlement. In addition, current case law has made some employee-friendly decisions. For maximum legal certainty, you should always consult a specialist lawyer, as this will ultimately save your nerves, your bank account and your working atmosphere. The following is a small selection of possible agreements.
Clear differentiation between statutory entitlement and additional leave
Experts advise an employment contract clause that clearly differentiates between statutory entitlement and contractual additional leave. The statutory entitlement cannot be disregarded. If the shares are treated separately, the statutory entitlement always remains untouched, while additional leave can be individually designed and at the same time perceived as a bonus and extra. In the absence of such a clause, all possible compensation claims apply to the entire vacation entitlement.
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Employment contract with pro rata additional leave
For example, you can agree that one twelfth of the additional leave is always granted per month of employment. In this way, it can be excluded that an employee works only a few months, but takes the full annual leave and then leaves the company.
Additional vacation can be reduced by 1/12 per full month by agreement if the employee has no pay entitlement (unpaid special leave, parental leave) or pay continuation entitlement (illness) in that month because no work was performed. It is also often agreed that the statutory vacation entitlement is to be used up first. Here are more tips on the typical clauses of an employment contract.
Clauses regulating compensation for additional leave are popular. Compensation can be excluded in general, tied to a short expiry period or excluded in the event that one of the parties to the contract terminates the employment relationship. In principle, exclusion clauses may not place the employee in a worse position overall than the legal regulations stipulate.