Acquisition of holiday entitlement in cases of unpaid special holiday

The claimant took unpaid special holiday between 1 January 2011 up until the end of the employment relationship on 30 September 2011. During this period, the employment relationship was suspended. Following her departure, she asked her former employer to compensate her for 15 days holiday for the
year 2011.

The Federal Labour Court upheld the claimant’s action.The claimant had acquired her statutory minimum holiday entitlement even while the employment relationship was suspended. The employer was not entitled to reduce the holiday entitlement.

No contractual reduction of the statutory holiday entitlement

After a period of service of six months, all employees have a statutory entitlement to paid recuperation holiday of 20 working days (5-day week) in every calendar year.

The creation of the statutory holiday entitlement presupposes only the legal existence of the employment relationship. There is no requirement for the employee to actually work in addition. Consequently, the employee acquires the statutory holiday entitlement even if the employment relationship is suspended. Since, under Section 13 Subsection 1 Sentence 1, Sentence 3 BUrlG (Federal Holiday Act), deviation from this to the detriment of the employee is not possible, individual contractual agreements on a reduction of the holiday entitlement are ineffective. A reduction is only admissible if the law explicitly provides for this - as is the case with parental leave or military service. By contrast, the law does not contain a ruling on reduction during suspension of the employment relationship.

Summary

The statutory minimum holiday entitlement cannot be effectively removed from the contract in cases of unpaid release. This is only possible for the additional holiday agreed by contract.