Vacation entitlement: How much? When? Who first?
Employees are generally entitled to paid vacation in each calendar year. The statutory minimum vacation according to the Federal Vacation Act is 24 working days. However, collective bargaining agreements or individual agreements often result in a higher vacation entitlement. More favorable collective bargaining provisions or individual agreements take precedence over statutory provisions. Special provisions also result from the Youth Employment Protection Act and the Severely Disabled Persons Act, among others.
Requirements for vacation entitlement
The prerequisite for the vacation entitlement is the existence of an employment relationship. This includes vocational training, part-time and marginal employment. The employee acquires the full vacation entitlement after a waiting period of six months. It does not depend on whether the employee has actually worked. The employee shall be entitled to one-twelfth of the annual leave for each full month of the existence of the employment relationship for periods of a calendar year for which he/she does not acquire a full leave entitlement either due to non-fulfillment of the waiting period in this calendar year or if he/she leaves the employment relationship before fulfillment of the waiting period or if he/she leaves the employment relationship after fulfillment of the waiting period in the first half of a calendar year (i.e. up to the 30th month of the calendar year).06.) leaves the employment relationship. If the employee leaves the company in the second half of the year after having completed the waiting period, no quota is applied; the full vacation entitlement is therefore accrued.
Vacation entitlement when changing employer
If the employee changes the employer in the current year and has not received vacation or compensation in his previous employment relationship, an entitlement arises in the new employment relationship without reduction. The new employer may not refer the employee to his previous employer.
Vacation duration and timing
The minimum leave period for employees is generally 24 working days per year, with Saturday counted as a working day. If the working time is not distributed over all working days of the week (6 days), the vacation entitlement must be converted into working days.
1. Regular distribution of working time over 5 or fewer working days per week
Example of a 5-day week:
Total duration of statutory vacation for the employee (24 days) ÷ 6 working days x number of working days of a week (5) relevant for the employee = 20 vacation days
Example of a 3-day week:
Total period of statutory leave for the employee (24 days) ÷ 6 working days x number of working days in a week relevant for the employee (3) = 12 days of leave
The same applies to marginally employed persons.
2. Irregular distribution of working days per week
If the working time of an employee is not regularly distributed over a certain number of weekdays, but, for example, sometimes over four, sometimes over five days per week, the calculation is to be based on the year. In this case, the Federal Labor Court (BAG) ames a work obligation of 260 days in the 5-day week and 312 working days in the 6-day week, provided that a collective agreement does not contain any other provision.
The calculation formula is then:
Statutory or collectively agreed vacation period or contractual vacation in the case of full-time employees ÷ annual working days or annual working days (depending on the company basis) x days on which the employee is obliged to work in the year
Example: An employee works 5 days a week for 28 weeks a year, 4 days a week for 18 weeks and 3 days a week for 6 weeks. In the company there is a vacation entitlement of 28 working days with a 5-day week. Vacation entitlement is calculated as follows:
28 working days (company vacation period) ÷ 260 annual working days x 230 working days (28 weeks x 5 working days + 18 weeks x 4 working days + 6 weeks x 3 working days) = 24.67 vacation days
This results in a vacation period of 24.67 working days. A rounding up according to § 5 para. 2 Federal Leave Act does not take place in this case.
For part-time employees, the same principles apply in the event of an uneven distribution as for the calculation in the full-time employment relationship.
The granting of additional vacation days for older employees is possible according to a decision of the Federal Labor Court (ruling of 21. October 2014, Az.: 9 AZR 956/12). In doing so, the employer must carry out an assessment based on the specific situation in his company.
The determination of vacation is not made unilaterally by the employee, he has no right to take vacation himself. If the employee claims his leave entitlement, the employer shall determine the date of the leave taking into account the employee's wishes for leave. The employer does not have to take into account the employee's vacation wishes if urgent operational concerns or vacation wishes of other employees that have priority from a social point of view conflict with this. If the employer draws up a vacation plan, the works council shall have a say in the matter.
Scope of vacation entitlement in the event of a change in the number of working days
Based on a decision of the European Court of Justice (decision of 13.06.2013, AZ C-415/12), it is not permissible in the case of a reduction in the number of working days in the course of the year to reduce the number of vacation days acquired during a previous full-time job (BAG, judgment of 10.02.2015, CASE NO. 9 AZR 53/14). The number of vacation days to which the employee is entitled must therefore be calculated in sections. This should also apply to the reverse case of an increase in the number of working days.
In principle, the vacation should be granted and taken consecutively in the current calendar year. A carryover entitlement to 31.03. of the year following the vacation year or beyond can be agreed individually or results partly from collective agreements. If the granting of vacation in the current calendar year is not possible either for urgent operational reasons or for personal reasons of the employee (illness), the vacation is carried over by law into the first calendar quarter of the following year. If the vacation is not granted and taken either in the current calendar year or in the carryover period, the vacation entitlement does not automatically expire. Instead, the employer is subject to more stringent requirements. The works council must ensure that the employee is actually able to take his or her annual leave. Accordingly, he must request him to do so – formally, if necessary – and inform him in a timely and comprehensive manner that the vacation will be forfeited if the employee does not take it. In this case, the employer bears the burden of proof. He must prove that he acted with due diligence (ECJ, judgment of 6. November 2018, Az C-684/16).
However, this does not apply if the employee was unable to exercise his entitlement to paid annual leave during all or part of the reference period due to illness and his incapacity to work continued until the end of the carryover period. This is what the European Court of Justice ruled on 20.01.2009 ("Schultz-Hoff", Az C-350/06) decided.
However, the European Court of Justice has also set a limit on the accrual of leave (judgment of 22.11.2011, Az C -214/10). The employee who has been on long-term sick leave cannot accumulate his entitlement to minimum leave without limitation over several years. The forfeiture of minimum vacation entitlements of employees on long-term sick leave may be ordered by law or collective agreement if the corresponding carryover period is sufficiently long to ensure the recreational purpose of the vacation for the employee. The ECJ considers a carryover period of 15 months after the end of the calendar year for which the minimum leave has accrued to be sufficiently long. The Federal Labor Court (ruling of 07.08.2012, Az. 9 AZR 353/10) has already followed this case law: "Vacation entitlements expire at the latest 15 months after the end of the vacation year". The Federal Labor Court (BAG) has ruled that this limit also applies if there is no corresponding collective agreement provision.
If an employee who has been ill for a long time continues to work after his recovery, according to a decision of the BAG (ruling of 09.08.2011, ref. 9 AZR 425/10) claims accumulated during incapacity for work expire at the end of the current calendar year if the employee recovers in good time in the current vacation year so that he can still take his vacation in the remaining period. In this case, in order to prevent the vacation from expiring, the employee must claim all of the vacation he or she has accrued during the period of illness in the same calendar year or by. if applicable. at the latest by 31.03. of the following year.
Vacation pay, vacation allowance and vacation compensation
The employee is entitled to continued payment during the vacation (vacation pay). The amount is based on the employee's average earnings in the last 13 weeks before the start of the leave. Overtime pay is not taken into account. There is no statutory entitlement to an additional vacation allowance (gratuity). However, an additional vacation allowance is often granted on the basis of collective bargaining agreements or employment contracts or corresponding company practice.
In principle, it is not permissible to compensate for unused vacation in cash. This results from the basic idea of vacation, i.e. the release from work for the purpose of recreation. Compensation for vacation is only permissible if the vacation entitlement can no longer be fulfilled due to termination of the employment relationship. Terminated employees no longer have to claim their outstanding vacation until the end of the year or until the end of the carryover period (BAG, ruling dated 19.06.2012, Az: 9 AZR 652/10). The employee's normal remuneration is decisive for the calculation.
Collectively agreed or contractual preclusion periods can lead to forfeiture of the compensation entitlement. In the case of over-legal additional leave, an individual contractual or collectively agreed preclusion period always leads to the forfeiture of the compensation claim. The BAG ruled on 09.08.2011 (9 AZR 365/10) ruled that an exclusion clause in a collective agreement also applies to compensation for statutory minimum leave. If a collective bargaining agreement provides for z. B. If the employee has a three-month exclusion clause after termination of the employment relationship, all claims to compensation expire at the end of this period.
The entitlement to paid annual leave also does not lapse if an employee dies. For this case, the European Court of Justice ruled on 6. November 2018 (Az C-569/16 and C 570/16) ruled that the heirs may be entitled to a compensation claim regarding the vacation days not taken so far.
Illness during vacation
If an employee falls ill during his or her vacation, the days of incapacity for work as evidenced by a medical certificate shall not be credited against the vacation. Even in the event of prolonged illness during the vacation year, the vacation entitlement is not affected. It exists even if the employee has been ill for the whole year. The vacation entitlement does not expire even if the incapacity for work has continued until the end of the carryover period and the vacation could not be taken for this reason.
Leave of absence
An entitlement to (un)paid time off may arise from law, works agreement, contractual agreement or collective agreement. Paid time off is granted to employees in particular for personal reasons if they are prevented from performing their work for a relatively short period of time through no fault of their own and if they cannot reasonably be expected to perform their work, taking into account their duty of loyalty. These include:
– Birth or death in the family – serious illness of close relatives – doctor's appointment – relocation, etc.
There are no legal requirements with regard to the duration of special leave. However, they can arise from collective bargaining agreements or works agreements.
After six months of service, employees in North Rhine-Westphalia are entitled to time off for political or professional training amounting to five working days per year. Remuneration continues to be paid during educational leave.