Creating legal certainty in holiday law
©AdobeStock Daniela H.
Leave has an important function. The purpose of leave is not only to provide employees with time for their own use. The focus of the legal right to leave is the recreational function. This not only supports the maintenance of the employees' health, but also preserves their working capacity. Therefore, there must be legal certainty for both parties to the employment contract in terms of holiday law.
The Federal Leave Act (BUrlG) guarantees a statutory minimum leave entitlement. Employees are entitled to 20 days' holiday, for example, if they work five days a week. This corresponds to the minimum leave entitlement of four weeks of the EU Working Time Directive. If the employee is granted leave, his or her pay continues to be paid. What is over and above this minimum leave entitlement is a matter for negotiation between the parties to the employment contract and the collective agreement. The parties to the agreement may agree that the employee is entitled to further leave in addition to his statutory minimum leave entitlement. They may also agree that the employee will receive holiday pay in addition to the pay to be continued during the holiday.
Since 2009, numerous rulings have been made, particularly as a result of the case law of the European Court of Justice, which in many cases represent fundamental changes of direction in holiday law:
- The statutory minimum leave shall not be forfeited in the event of long-term uninterrupted illness before the expiry of 15 months from the end of the leave year in which it accrued if the employee has not had the opportunity to claim the leave entitlement.
- A full-time employee who changes to part-time and thereby reduces the number of days worked per week may not have the holiday entitlement acquired during full-time employment reduced proportionately if it was not possible for the employee (due to illness, etc.) to take the holiday during full-time employment.
- If working hours are reduced as a result of short-time working, the holiday entitlement can also be adjusted - in a similar way to part-time employees.
- An age-dependent graduation of collectively agreed holiday entitlements can be discriminatory if any higher holiday entitlements for older employees are not based on a comprehensibly increased need for recreation.
- An employee does not automatically lose his accrued entitlement to paid annual leave because he has not requested leave. However, if the employer can prove that he has informed the worker of an impending forfeiture and the worker voluntarily and in full knowledge of the facts renounces to take his paid annual leave after having been enabled to effectively exercise his leave entitlement, Union law does not preclude the loss of that entitlement and, in the event of termination of the employment relationship, the loss of any financial compensation.
In holiday law, as a fundamental element of the employment relationship, it must be clear to employers and employees directly from the law what applies. Due to the extensive changes made by case law, it is therefore necessary to adapt the Federal Leave Act. This applies in particular to cases where an employee has been unable to take leave due to long-term illness. It should be clarified in the Federal Leave Act that leave expires at the latest 15 months after the end of the leave year, even in the case of long-term illness.
