The vacation planning of employees in the company is sometimes not an easy undertaking. Clashing appointments, school holidays, remaining leave, downtime of several weeks up to month-long sabbaticals often make personnel planning a creative challenge. The legal and contractual framework conditions determine the scope.
Does it make sense to distinguish between statutory and other leave in the employment contract?
“With regard to the entire vacation planning in the company and the associated financial risks for the employer, this distinction makes perfect sense. Because, unlike the statutory minimum vacation, the employer can set his own ‘expiry date’ for additional contractual vacation, starting from the statutory maximum transfer period, 31.03. of the following year, deviates. For example, he can order that so-called extra-mandatory vacation days after December 31. of the current year expire. “
More and more employees are expressing the desire to take a longer break from their job. What about the vacation entitlement during a sabbatical?
“In the case of unpaid special leave or sabbaticals, the statutory leave according to the BAG can even be reduced to zero. If an employee is wholly or partly on unpaid special leave during the holiday year, the main performance obligations of both parties, i.e. work and remuneration, are temporarily suspended accordingly by the agreement of special leave. In the absence of an obligation to work, the employee is therefore also not entitled to vacation leave in the current calendar year. The employer, therefore, does not need to grant statutory paid vacation in addition to the sabbatical. “
Can new vacation entitlements arise during an employee’s parental leave?
“Basically yes, but employers have the option of reducing the vacation by one-twelfth for each full month of parental leave. In a current ruling, the BAG has only once again confirmed that this is also in accordance with Union law. This means that the regulation is compliant with European law and includes both statutory and contractual vacation entitlements. However, employers must expressly declare the reduction – ideally verifiable in text form and right at the start of parental leave. “
Many employees still have remaining vacation at the beginning of the new year. Does the employer have to indicate open vacation days?
“There is no legal obligation, but the employer is advised to inform the employee of any open vacation days in good time before the end of the vacation year. According to the case-law of the ECJ, the employer is required to ensure in concrete terms and in complete transparency that the employee is actually able to take his annual paid leave by – if necessary formally – asking him to do so. If he does not do this, the employee can have a claim for compensation for a replacement vacation. Unused vacation days can only expire if the employer has specifically requested the employee beforehand to take the vacation and has clearly and promptly informed him,
The employee would prefer to have the remaining vacation paid out. Is the?
“By law, remaining vacation can only be financially compensated when the employment relationship is terminated. Compensation in the current employment relationship is not regulated by law and is also not compatible with the purpose of the vacation. According to a current ruling by the BAG, the remaining vacation must also be paid if the employment relationship ends due to the death of the employee. Then his heirs are entitled to compensation for the annual leave not taken before death. The heirs’ entitlement to compensation not only includes the right to paid recreational leave under the Federal Leave Act, but also the right to additional leave for severely disabled people and the right to leave under a collective agreement that exceeds the statutory minimum leave. “
To what extent can employers dictate or influence the time of their employees’ vacation?
“As a rule, the employee can indicate when and how long they want to take a vacation. Insofar as the employee’s wishes do not conflict with urgent operational issues or the interests of other colleagues who are more worthy of protection, this would have to be complied with. However, if the employee is urgently needed for a project in the desired period or if colleagues have already applied for vacation during this period, for example, because of their children, the vacation request can be rejected. According to the law, it is therefore up to the employer to determine the timing of the vacation, taking into account the employee’s vacation preferences. But that does not force him to grant the employee leave of his own accord. “
Can the employer ask its employees to be available on vacation as well?
“No, a self-determined use of the granted free time would not be guaranteed if an employee had to constantly expect to be called to work despite being released from work. An employee is therefore not obliged to give his vacation address. Depending on the position of the employee in the company, however, availability for urgent cases can be expected, if the continuation of business operations would otherwise be jeopardized. But in principle, a unilateral change to a vacation that has been granted is no longer possible. Therefore, the employer does not have a ‘right of withdrawal’ or a right to ‘recall’ the employee. “