Unpaid leave

The Federal Labour Court has decided that periods of unpaid special leave are not taken into account for the calculation of the statutory minimum leave.

The plaintiff has been employed by the defendant since 1 June 1991. As requested, the defendant granted her unpaid special leave in the period from 01.09.2013 to 31.08.2014, which was extended by mutual agreement to 31.08.2015. After the end of the special leave, the plaintiff requires the defendant to grant her the statutory minimum leave of 20 working days for the year 2014.

The labor court had dismissed the action. In response to the plaintiff’s appeal, the Regional Labour Court had amended the judgment of the Labour Court and ordered the defendant to grant 20 working days’ leave.

The defendant’s appeal was successful before the BAG.

In the opinion of the BAG, the plaintiff is not entitled to paid annual leave for 2014. According to § 3 (1) BUrlG, the entitlement to paid annual leave amounts to 24 working days if the work is evenly distributed over six days a week. This corresponds to a statutory annual leave entitlement of 20 days for a five-day week. If an employee’s working time is spread over fewer or more than six working days in the calendar week, the number of days of leave must be calculated taking into account the rhythm of work relevant to the leave year in order to ensure an equivalent length of leave for all employees.

The BAG has not yet carried out this conversion in cases of special leave. It does not adhere to this case law (BAG, judgment of 06.05.2014 – 9 AZR 678/12 marginal 11 et seq. – BAGE 148, 115). If an employee is on unpaid special leave in whole or in part during the holiday year, the fact that the parties to the employment contract have temporarily suspended their main performance obligations by agreeing special leave must be taken into account when calculating the holiday period. As a result, an employee is not entitled to rest leave for a calendar year during which he is on unpaid special leave due to a lack of work obligations.

Previous instance

LArbG Berlin-Brandenburg, jurisdiction from 20.06.2017 – 11 Sat 2068/16

Source: BAG press release No. 15/2019 of 19.03.2019