A young mother who had been employed as a management assistant since 2001 had complained. The plaintiff had two children and was continuously on parental leave from January 2013 to December 2015. After her return, she resigned from her employment on June 30, 2016 and applied for leave for the duration of the notice period.

Her employer granted her vacation. However, he did not take into account the period of parental leave. The plaintiff was of the opinion that a holiday entitlement had also arisen for the duration of the parental leave. She then turned to the labor court and applied for compensation for the leave that had not been granted. Wrongly - like now the Judges of the BAG decided.

In principle, employees acquire a holiday entitlement with every month that they are in an employment entitlement. This also applies to the duration of parental leave.

However, according to the employer § 17 BEEG reduce vacation entitlement by one twelfth for each full month an employee is on parental leave. This does not apply if the employee works part-time for his employer during parental leave.

There is also a right to a reduction in the case of contractual additional leave

In addition to the statutory minimum vacation, this right to reduction also includes contractually granted additional vacation.

According to the judges, the reduction in holiday entitlement requires the employer to make a declaration to this effect. It must be clear to the employee that the employer intends to make use of his right to reduction.

The reduction of holiday entitlement during parental leave is also not objectionable under European law. In a decision the European Court of Justice, which had to deal with the holiday entitlement of a Romanian judge, declared such a regulation to be permissible and justified its decision with the judge's exemption.

Because an employee who does not have to come to work because of parental leave cannot be put on an equal footing with an employee who is actually working. The overall reduction must therefore be permissible.

Employees who make use of their entitlement to parental leave are therefore not entitled to any additional holiday entitlement for the duration of their leave. However, in order to reduce the holiday entitlement, the employer must indicate that he intends to exercise his right to a reduction.

If you have any questions about parental leave, please contact our office and arrange one meeting .

or call us on the phone number02366-94066 02.