Even in the event of dismissal, the employer is not obliged to grant any remaining holiday entitlement of its own accord. The entitlement lapses if the employee fails to make an appropriate formal request.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: If an employment relationship is terminated, this often gives rise to disputes between employer and employee regarding the remaining vacation days, overtime as well as other accessory claims of monetary value. Employment law provides, however, that the employer need not grant of its own accord any remaining holiday entitlement owed to the employee in the event of dismissal, assuming there are no contractual or collective agreements to this effect. The Landesarbeitsgericht (LAG) München [Regional Labour Court of Munich] confirmed in its ruling of April 20, 2016 that the employee must apply for holiday leave even in the event of dismissal in order to prevent the entitlement from lapsing (Az.: 11 Sa 983/15).

The case concerned an employee’s contested dismissal. In the proceedings brought in response to an action against unfair dismissal, the LAG München ultimately concluded in November 2013 that the dismissal had been ineffective. Due to the legal dispute, the employee had not taken any holiday leave in 2013. He subsequently made multiple requests beginning in February 2014 to take the remaining holiday leave for 2013. The employer rejected his request for time off, arguing that the holiday leave had lapsed when the year 2013 came to an end. The employee’s legal action was unsuccessful.

The LAG München held that the vacation entitlement had expired when the year 2013 came to an end because the employee had not asserted it. In the absence of any other arrangements, the entitlement to holiday leave would cease to exist at the end of the year. The Court went on to say that this entitlement could only be carried forward to the first quarter of the following year if there were pressing operational or personal reasons for this, e.g. sickness. There was no arrangement derogating from this legal rule in the instant case. Collective agreements were not relevant here either, as the worker in question had been an exempt employee who was not covered by collective agreements. Furthermore, there were no pressing personal circumstances, since the employee could have requested time off notwithstanding the dispute in relation to the action against unfair dismissal. The LAG München ruled that the holiday entitlement had thus lapsed and that the employee was not entitled to compensation.

When it comes to disputes pertaining to the employment relationship, lawyers who are versed in the field of employment law can offer advice.

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