In its ruling of 6 May 2014, the BAG held that an employee's statutory vacation entitlement may not be reduced by the employer where the employer grants unpaid special leave at the employee's request.
The plaintiff was employed by the defendant as a nurse from August 2002 until 30 September 2011. At the plaintiff's request, the defendant granted her unpaid special leave from 1 January 2011 until the end of the employment relationship. Due to the termination of the employment relationship, the plaintiff was unable to take her vacation and unsuccessfully demanded compensation for 15 days of vacation from 2011 from the defendant. In its ruling, the BAG sets out that every employee is entitled to paid vacation in each calendar year. The only prerequisite for the vacation entitlement is the legal existence of an employment relationship and the one-off fulfilment of the waiting period. The statutory vacation entitlement therefore also arises in the case of a suspended employment relationship. However, in the case of a suspension of the employment relationship as part of care leave, no such option to reduce the entitlement is provided for. The BAG clearly states that the special leave agreed between the parties at the beginning of 2011 does not prevent the statutory vacation entitlement from arising, nor does it entitle the defendant to a reduction.
Frequently asked questions
Frequently asked questions
Does statutory vacation entitlement accrue during unpaid special leave?
Yes. According to the BAG ruling of 06.05.2014, statutory vacation entitlement accrues even when the employment relationship is suspended due to unpaid special leave. The only requirements are the legal existence of an employment relationship and the one-time fulfillment of the waiting period.
Can the employer reduce vacation entitlement due to granted unpaid special leave?
No. The BAG has clarified that the employer may not reduce the statutory vacation entitlement when granting an employee unpaid special leave at their request. There is no statutory basis for a reduction in such cases.
What requirements must be met for the statutory vacation entitlement?
The employee only needs a legally existing employment relationship and must have fulfilled the six-month qualifying period once. Actual work performance in the respective calendar year is not required, so the entitlement also arises during a suspended employment relationship.
Can unused vacation be paid out after the end of the employment relationship?
Yes. If the employee was unable to take their vacation due to the termination of the employment relationship, they are entitled to financial compensation from the employer for the outstanding vacation days. This also applies if the employment relationship was previously suspended due to unpaid leave.
Are there differences between care leave (Pflegezeit) and unpaid special leave (Sonderurlaub) regarding vacation entitlement?
In both cases, the employment relationship is suspended without any statutory reduction of vacation entitlement. The BAG emphasizes that statutory vacation entitlement generally accrues independently of actual work performance, as long as the employment relationship legally continues to exist.