Federal Labour Court, 07.08.2012, Ref.: 9 AZR 353/10
For employees (blue-collar and white-collar workers as well as those employed for their vocational training), holiday entitlement is regulated in the Minimum Holiday Act for Employees (Bundesurlaubsgesetz; BurlG).
According to Section 3 (1) BurlG, every employee is entitled to paid holiday leave of at least 24 working days per calendar year as part of a six-day week, otherwise 20 working days.
This entitlement of the employee does not lapse even if the employee was unfit for work during the entire holiday year.
This provision applies even if the employee is drawing a temporary pension due to reduced earning capacity and a collective agreement provision stipulates that the employment relationship is to be suspended for a limited period while the employee is drawing this pension.
Section 7 (3) sentence 3 BUrlG does stipulate that, in the event of a transfer, holiday must be granted and taken in the first three months of the following calendar year:
"Leave must be granted and taken in the current calendar year. The leave may only be carried over to the next calendar year if this is justified by urgent operational reasons or reasons relating to the employee. In the event of carryover, the leave must be granted and taken in the first three months of the following calendar year. However, at the employee's request, any partial leave accrued in accordance with § 5 para. 1 letter a must be carried over to the next calendar year."
However, this provision must be interpreted in accordance with EU law in the event of the employee being ill throughout the year so that the holiday entitlement expires 15 months after the end of the holiday year.
Facts of the Case The plaintiff, who is recognised as severely disabled, was employed as an employee in the defendant's rehabilitation clinic from 1 July 2001 to 31 March 2009 in return for a gross monthly salary of EUR 2,737.64.
In 2004, she fell ill, drew a temporary pension due to reduced earning capacity from 20 December 2004 and no longer worked for the defendant until the employment relationship was terminated.
According to the TVöD (collective agreement for the public sector), which applied to the employment relationship, the employment relationship was suspended during the period in which the pension was drawn and the duration of the holiday leave, including any additional leave under the collective agreement, was reduced by one twelfth for each calendar month of suspension.
In court, the plaintiff claimed compensation for 149 days of holiday from the years 2005 to 2009 totalling 18,841.05 euros gross.
The lower courts upheld the claim for compensation for statutory holiday leave and additional leave for severely disabled persons and ordered the defendant to pay a gross amount of 13,403.70 euros.
The lower courts dismissed the claim for compensation for additional leave under the collective agreement.
Federal Labour Court: The defendant's appeal before the Federal Labour Court was largely successful.
According to Section 7 (4) BUrlG, the plaintiff is only entitled to compensation for the statutory holiday and additional holiday from 2008 and 2009 totalling EUR 3,919.95 gross.
The statutory holiday entitlements that could not be waived in the years 2005 to 2007 had arisen despite the suspension of the employment relationship.
However, the fact that they expired prior to the termination of the employment relationship in accordance with Section 7 (3) sentence 3 BUrlG at the end of 31 March of the second year following the respective holiday year would prevent them from being compensated.
Source: Federal Labor Court
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