BUrlG, Bundesurlaubsgesetz, Kommentar: Arnim Powietzka, Christian Rolf: BUrlG, Bundesurlaubsgesetz, Kommentar (German) Paperback – by Arnim . Germany Employment and HR Jones Day 31 Dec The German Federal Vacation Act (Bundesurlaubsgesetz; BUrlG) assumes the basic. 7 (3) Federal leave Act (“Bundesurlaubsgesetz – BUrlG”). for compensation in respect of the leave not granted to him from till
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Vacation is an important aspect of the employment relationship. Problems in this context arise mostly when employment is interrupted by long-term illness or concluded by termination or death.
Several recent decisions have addressed this issue. The German Federal Vacation Act Bundesurlaubsgesetz ; BUrlG assumes the basic principle that vacation is to be granted and taken in each calendar year and will lapse if not taken.
As an exception to this rule, carry-over to the next quarter is possible if “urgent operational reasons or reasons concerning the person of the employee justify this” Bundesurlaubsgeset 7 Para. Upon the expiration of the three-month carry-over period, the vacation lapses unless a further exception occurs, i.
A further provision holds that if vacation cannot be taken due to the employee’s termination, financial compensation is to be paid Section 7 Para. In this context, the German Federal Labor Court Bundesarbeitsgericht ; BAG thus far has treated the compensation payment as a “surrogate” of the actual grant of vacation and has therefore based its expiration on the same time periods that apply to the expiration of the actual vacation claim.
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Contrary to the judgment ofthe BAG expressly confirmed that an incapacity to work is not relevant in this context. Section of the German Civil Code states that the compensation claim is subject to a three-year statute of limitations bundesurlaubsvesetz a shorter preclusive period under a collective bargaining agreement or employment agreement is already in effect.
In this particular case, the employer granted employees 26 vacation days until the 30th birthday, 29 days until the 40th birthday, and 30 days thereafter.
The action was brought by a female employee entitled to 29 vacation days who also requested the 30th day. In this case, the BAG could find no justification for disadvantaging those under 40 and thus held that vacation time must be equal for all. Nevertheless, the court recognized that additional vacation days might be justified for employees nearing retirement, since these workers usually have decreased resistance to fatigue, illness, and stress.
Consequently, while employers can avoid charges of age discrimination by granting the same amount of vacation time to all employees, it may also be permissible to provide extra time to those in their 50s and 60s. In the context of terminations, it frequently happens that the employer wants to release the employee from work during the notice period.
This usually includes the desire to set off the release time against the employee’s vacation time. The judgment held that the employer must clearly express whether the set-off refers to all of the employee’s vacation time or only part of it, with the employer bearing the risk resulting from any ambiguous statements. In the case at hand, on November 13,the employer notified the employee of the termination of the work relationship, effective March 31, The employee was to receive remuneration while being released from work, combined with a set-off against his vacation days during the four-and-a-half-month notice period.
When the termination was subsequently held to be ineffective, the employee returned to work after the scheduled termination date. Had the termination been effective, the employee would have been entitled to partial vacation for pursuant to Section 5 Para. The employer contended that the employee had used all his vacation time for during the notice period; the employee stated that he was entitled to additional vacation because the employer’s statement at the time of the notification had been unclear.
The BAG sided with the employee because of the ambiguity in the original statement. Had the employer clearly informed the employee that the release from work covered any vacation claim, no further time would have been awarded. As stated above, payments in lieu of vacation come into consideration only if the vacation has not lapsed.
The complaining employee in this case had been continuously incapable of working due to illness from through the middle ofat which time he returned to his duties. In the second half ofhe was granted 30 vacation days. Inhowever, the employee demanded a declaratory judgment stating that he was entitled to 90 additional vacation days covering the years through The BAG denied this. Failure to take the vacation before the end of the year will cause the claim for accrued vacation time to lapse.
In this case, the employee’s claim for the accumulated vacation time lapsed on December 31, In the meantime, the ECJ also passed guiding decisions on the total amount of vacation that can be accrued. Following a series of rulings indicating that employees incapable of working due to illness could accumulate vacation claims to an unlimited extent, the court now appears to be accepting limits.
Since the substantiation applied by the ECJ is applicable to statutory vacation pursuant to the BUrlG, accumulation of three years’ worth of vacation should no longer be feared.
Last but not least, the BAG dealt with the question of the transferability of vacation claims by succession. The fact that a deceased employee cannot take vacation goes without saying.
In this particular case, the employee in question had been employed during the years and but suffered from a long-term illness that prevented him from taking his vacation. After his death, his heirs requested payment from the employer in lieu of vacation, which the Regional Labor Court awarded.
The content of bundesurlaubsgesrtz article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Your LinkedIn Connections at Bundesurlausbgesetz. Release From Work by Set-Off Against Vacation In the context of terminations, it frequently happens that the employer wants to release the employee from work during the notice period.
Lapse of Vacation Claims As stated above, payments in lieu of vacation come into consideration only if the vacation has not lapsed. Transferability by Succession Last but not least, the BAG dealt with the question of the transferability of vacation claims by succession. Do you have a Question or Comment?
Recent Developments In Vacation Law – Employment and HR – Germany
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