The main vacation season is about to begin. For this, the employee claims the vacation entitlement to which he is entitled. If the duration of the vacation is not specified in the employment contract, the annual statutory minimum vacation according to § 3 para. 1 of the German Federal Vacation Act is 24 working days (including Saturdays). Since the legislator still assumed a six-day working week, but a five-day week is now the norm, it needs to be converted to five working days. This results in twenty working days for an employee who works five days a week. A reduction of the statutory vacation entitlement by individual agreement at the expense of the employee is not permitted under § 13 para. 1, no. 3 of the Federal Vacation Act.
If the employee wishes to take vacation, he must assert his claim to vacation in order to prompt the employer to set the period of entitlement. Once the vacation has been set, the employer and the employee are generally bound by it. Neither of the parties to the employment contract is entitled to unilaterally change the time period.
It is debatable whether the employee has the right to take leave, especially if the employer refuses to grant leave without good reason. The Federal Labor Court (judgment of January 20, 1994, 2 AZR 521/93) assumes that in view of the comprehensive system of judicial legal protection, an employee's right to take a leave of absence is to be rejected in principle. If the employer refuses to fulfill the vacation entitlement, the employee must file an action for vacation leave for a specific period in the future. If the employee instead takes unauthorized leave without the employer's permission, he or she is in breach of his or her contractual obligations. Such behavior is in itself sufficient to constitute good cause for termination without notice.
The Frankfurt Labor Court even upheld a termination without notice in which the employee concerned could actually have assumed, based on a generous interpretation of the circumstances, that she had behaved correctly. The employee had gone on vacation for four weeks and had called her colleague during the first week of vacation to inquire whether she could extend her vacation by one week. However, the colleague did not want to get involved in the matter and pointed out that her superior was responsible for this. However, she assured her over the phone that he would call the vacationer back. Since the call-back did not take place, the woman assumed that her superior had no objections to her extending her vacation. Nevertheless, the employer had something against this type of vacation planning and responded by terminating the employee without notice. The Frankfurt Labor Court (judgment of December 2, 2002, 15 Ca 7998/02) ruled that the employee's behavior constituted an unauthorized vacation extension. The court found that it was immaterial that she had previously tried to obtain an extension.
If legal assistance for enforcing a vacation claim cannot be obtained in time, then an extraordinary termination without notice can also be ineffective in individual cases in the event of an employee taking vacation without authorization if, among other things, the employer has allowed significant vacation entitlements of the employee to accrue due to its own financial interest and there is a risk that the vacation entitlements will expire.
Since this special exception is likely to arise only rarely and can hardly be proven by the employee, every employee is strongly advised not to go on vacation without permission or to extend the vacation without authorization. If it is not possible to clarify the situation with the employer until shortly before the start of the vacation, legal clarification can be obtained at very short notice in the form of a temporary injunction.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.