“Recreation is the spice of work” ─ this view, which was already widespread in ancient Greece, has lost none of its validity in today’s meritocracy. The beginnings of recreational leave as a labour law achievement now go back 120 years. However, it was not until 1963 that it was fixed in the Federal Leave Act and can be found in § 1 Federal Leave Act (BUrlG): “Every employee is entitled to paid recreational leave in every calendar year.” Even though it is a legally guaranteed right, legal questions regularly arise concerning recreational leave. When may the employer order leave? Am I entitled to three weeks’ holiday at a stretch? What is the procedure for cancelling leave?
Schlun & Elseven Rechtsanwälte offers comprehensive legal assistance in labour law to both employees and workers. Our specialist lawyers for labour law will be happy to clarify your rights and obligations in connection with recuperation leave. Please do not hesitate to contact us if you have a specific question about your recreational leave and would like personal legal advice.
Holiday Entitlements in Germany ─ General Provisions
In addition to employees, trainees, persons similar to employees and persons employed in homework have a non-mandatory entitlement to leave of at least 24 working days (§§ 3, 12 BUrlG). Working days are the days of the week that are not Sundays or public holidays, i.e. the six days from Monday to Saturday. The calculation of the statutory holiday entitlement for employees with a five-day week is, therefore, as follows:
- 24 (working days) ÷ 6 (“working day week”) = 4 holiday weeks.
- 4 (weeks) x 5 (working days) = 20 working days
An employee is a person who, based on a contract under private law, is obliged to work in the service of another person under instructions and in personal dependence. A person can be “similar to an employee” if they are economically dependent on the client in a freelance or self-employed capacity and requires social protection due to the specific relationship.
The Limits of Legal Annual Leave Rights
Due to the possible strain of finding or starting a new job, some people may feel like relaxing, but § 4 BUrlG does not allow this. The entire holiday entitlement only arises after a probationary period of 6 months. Before that, only partial leave can be taken, § 5 Abs. 1 lit. a BUrlG.
Example: For a five-day working week, this is
- 20 (working days vacation) ./. 12 (months) = 1.66 days
- per full month of service.
Also, concerning the period of leave, § 7, Subsection 1, BUrlG, is intended to create a fair balance between the employee’s and employer’s interests. Thus, the employee’s wishes have priority over company interests. If, however, the employer’s wishes are of an essential operational urgency or if, from a socio-political point of view, the holiday wishes of other employees are more worthy of protection, the employee can be refused the approval of his desired holiday period.
It is important to note that only the employer is entitled to determine the leave period. If an employee takes leave on his own initiative, they run the risk of being dismissed. Whether in such a case of self-leave, a dismissal for conduct-related, extraordinary or immediate dismissal can be effectively issued to the employee must be subject to a specific legal examination in each case.
Note: If the employee falls ill while already on leave, these days are added to the annual leave – after the appropriate proof has been provided. However, an immediate extension of the leave is only legal with the employer’s permission.
Can Approved Holiday Leave be Revoked?
In the world of work, the revocation of leave that the employer has already granted is very rare but is possible under strict conditions. If this happens, it is advisable not to take leave at that time. Likewise, no risk should be taken in the event of disagreement about an imminent holiday. At this point, consult with a legal professional who will provide a competent assessment of the facts. It is noteworthy that unlawful taking or denial of leave often ends up in court, whereby not only is the holiday mood spoiled, but time and costs can stack up. The quickest protection in explosive cases is a temporary injunction from the labour court. Once again, consult with an employment and labour law professional to find the best solution.
Expiration and Continuation of Annual Leave Days in Germany
The standardised principle that annual leave belongs to the respective calendar year and can only be transferred in exceptional cases due to urgent operational circumstances or circumstances justified in the person of the employee (§ 7 para. 3 sentences 1 and 2 BUrlG) was countered by the ECJ in 2016 with two rulings (ECJ ruling of 06.11.2018, C-684/16; C-619/16). Accordingly, the Federal Labour Court continues its case law and limits the risk of forfeiture of leave. Specifically, this means that the holiday entitlement does not expire merely because it was not applied for before leaving the company or before the start of a new calendar year. It must be added that the employer put the employee in a position to take his leave on time. The employer must not only have encouraged and advised the employee to take the leave in the current calendar year, but in case of a dispute, the employer must also prove this.
There is a risk of forfeiture of leave if the employer has demonstrably pointed out in good time during the current calendar year that the leave must be taken by 31 December. Otherwise, it lapses without replacement. Of course, nothing changes, even if the employment relationship has been terminated. The employee can neither be deprived of the leave days nor do they expire. The employer must pay compensation for the holiday entitlement if the employee has left the employment relationship but still has holiday days remaining, § 7(4) BUrlG. Long periods of illness do not cause the holiday entitlement to lapse; on the contrary, in the case of long-term illness, there is even the possibility of summation and possibly very high compensation.
