No statutory leave entitlement for unpaid special leave

The FOPH has changed its previous case law on the accrual of the statutory leave entitlement in the granting of unpaid special leave. An employee who is continuously on unpaid special leave for a calendar year is not entitled to holiday leave in the absence of an obligation to work (Ruling of March 19, 2019 - 9 AZR 315/17).

According to previous case law of the FOPH, unpaid special leave did not reduce the statutory leave entitlement according to Sec. 1, 3 (1) BUrlG. If the employer and employee have agreed to the granting of unpaid special leave, as the FOPH ruled in 2014, this fact would have no effect on the accrual of the full statutory minimum leave. The FOPH now expressly no longer adheres to this case law. 

An employee who had been on unpaid special leave from September 2013 to August 2015 had taken legal action. After the end of the special leave she demanded from the employer the granting of the statutory minimum leave of 20 working days for the year 2014. The Labor Court dismissed the claim, the State Labor Court of Berlin Brandenburg has ruled that the defendant is to grant 20 working days leave. The defendant's appeal proved to be successful before the Ninth Senate. The plaintiff is not entitled to paid annual leave for the year 2014.

Conclusion

For the calculation of the statutory minimum leave, according to the new case law of the FOPH, the periods of unpaid special leave are disregarded.

Example:
An employee who is entitled to a statutory minimum leave of 20 working days (24/6 x 5 days per week) during a five-day week in accordance with Sec. 3 BUrlG is granted three months unpaid special leave. As the period of special leave is no longer taken into account, the statutory minimum leave only lasts for nine months. As a result, the employee is entitled to statutory minimum leave of 15 working days (9/12 x 20 working days leave).