Vacation, Long Term Illness, Old-Age Part-Time
In the recent past, holiday legislation has been strongly influenced by European case law. Now the Federal Labour Court (BAG) and the Regional Labour Court (LAG) Hamm have issued further clarifying rulings.
To clarify matters, the BAG ruled on 24 September 2019 (9 AZR 481/18) that employees who take advantage of partial retirement in the block model are not entitled to holiday entitlement for the period of the release phase and thus - after termination of the employment relationship - no holiday compensation entitlement.
If an employee is released from the obligation to work, he is not entitled to a statutory entitlement to holiday leave due to a lack of obligation to work. Nor was he to be equated with an employee who had actually worked during that period. In its ruling, the BAG even goes so far as to state that these principles must also be applied to contractually granted additional leave if the parties have not reached any other agreement for the calculation of the holiday entitlement during partial retirement.
Notwithstanding this clarification by the case-law of the BAG, it remains advisable to include clarifying provisions with regard to the holiday entitlement in employment contracts in order to prevent erroneous expectations on the part of the employee.
On 24 July 2019 (5 Sa 676/19), the LAG Hamm decided that there was no obligation to inform employees with long-term illnesses about the (imminent) expiry of vacation as of 31 December of a year.
Employees who are able to work and employees who are unable to work for a longer period of time are not comparable with regard to the granting of leave. A notification on the expiry of leave is only useful if the employee is actually in a position to make use of it. In the case of a long-term illness, however, this requirement was not met.
In addition to clarifying possible obligations of employers to inform employees about the expiry of holidays, the judgment of the LAG Hamm contained a further reference to the fact that the BAG's case law, according to which the holiday of employees suffering from long-term illness expires 15 months after the end of the calendar year in which the holiday entitlement arises, continues to apply. It is by no means certain, however, that the BAG's case law on holiday expiration after 15 months in the case of long-term illness will be continued, which is why it remains to be seen how the BAG will decide in the appeal instance.