No holiday entitlement during special leave
Periods of unpaid special leave are not taken into account when calculating the statutory minimum leave. This has that
Federal Labor Court (BAG) with judgment of March 19, 2019 and thus changed its previous case law..
Advice on labor law
The Federal Labor Court (BAG) has Judgment of 03/19/2019 decided that periods of unpaid special leave are not taken into account when calculating the statutory minimum leave. The BAG thus changed its previous case law.
The decision was based on the following facts:
acc. § 3 para. 1 BUrlG the entitlement to paid annual leave is 24 working days for a six-day week. This corresponds to a statutory annual vacation entitlement of 20 days for a five-day week. If an employee's working hours are spread over fewer or more than six working days in the calendar week, the number of vacation days must be calculated taking into account the work rhythm relevant to the vacation year in order to ensure an equivalent vacation duration for all employees.
performed. The only prerequisite for the creation of a holiday entitlement was the existence of an employment relationship (BAG judgment of 05/06/2014). The new perspective may be less employee-friendly, but it is more in line with the spirit and purpose of vacation leave: this can only be achieved if the employee actually had a need for rest. However, this is unlikely to be the case with special leave all year round.
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