Member Article

The summer holidays have already begun in most of the federal states or are about to begin. Due to the Corona pandemic, most holiday plans could not be realized during the Easter holidays. Although the travel warnings for most countries in the EU were lifted in time for the summer holidays, it is still not possible to enjoy "normal" holidays this year. As a result, employees approach their employers with the desire to take back - at least partially – their approved leave, in order to save it for later. This is often not in the employer's interest. Apart from his obligation to grant leave in the holiday year, the need for employment is regularly lower during the summer months. In contrast, employers expect (or speculate) that business will pick up again at the end of the year, so that accumulated holiday requests would then no longer be feasible due to accumulated holiday entitlements.

LEAVE NOT "POSTPONABLE" TO 2021

The wish of some employees to postpone their holidays from this year (mostly) until next year, in order to be able to (possibly) experience larger holiday trips again, is in any case unilaterally unenforceable.

Pursuant to sec. 7 para. 3 Federal Holiday Act (BUrlG), leave must be granted and used in the current calendar year. Only the leave that cannot be granted in the current year for urgent operational or personal reasons such as illness, for example, is to be carried over to the following year. However, it must then also be granted by 31 March of the following year and otherwise expires (sec. 7 para. 3 BUrlG). If the leave can actually no longer be granted due to the termination of the employment relationship, a monetary compensation of holiday entitlements is only possible in exceptional cases when the employment relationship is terminated (sec. 7 para. 4 BUrlG).

A holiday that cannot be taken as usual because of the "Corona pandemic" in 2020 cannot therefore be "converted" to a long-distance trip lasting several weeks next year against the employer's will.

ALREADY APPROVED LEAVE CANNOT BE "RETURNED"

An employee who, due to the Corona-related circumstances, does not wish to take a holiday already approved by the employer will, in principle, only be able to obtain a postponement of the holiday period with the employer's consent. This is made clear by the principles for granting of holiday: The employee's entitlement to annual leave must be determined by the employer in accordance with sec. 7 para. 1 BurlG by submitting a unilateral declaration of intent requiring receipt (so-called declaration of exemption). When determining the period of leave, however, the employer must take the employee's wishes into account, unless their consideration is opposed by urgent operational requirements or the holiday wishes of other employees who deserve priority from a social point of view. In practice, this means that although the timing of the leave is determined by the employer, the employee's wishes may only be deviated from on the basis of the exceptions mentioned.

Thus, if the employee has expressed a corresponding wish for leave, e.g. in the form of an application for leave, and the employer has "approved" it and thus "fixed" the leave, the employer has performed the fulfilment action incumbent upon him. The fulfillment effect (the actual use of the leave) according to sec. 362 German Civil Code (BGB) can therefore occur. A unilateral termination of the employee (as well as the employer) is not possible anymore. The employer is also only entitled to change the employees´ approved vacation plans in extreme emergencies.

However, a departure from an already fixed holiday period is possible by means of an adjustment in accordance with the principles of frustration of contract in accordance with sec. 313 BGB. If circumstances which became the basis of a contract have significantly changed since the contract was entered into and if the parties would not have entered into the contract or would have entered into it with different contents if they had foreseen this change, adaptation of the contract may be demanded to the extent that, taking account of all the circumstances of the specific case, in particular the contractual or statutory distribution of risk, one of the parties cannot reasonably be expected to uphold the contract without alteration.

In principle, in the Corona-cases the conditions for the normative element, i.e. the unreasonableness of maintaining the specified exemption period, are unlikely to be met. This would require unacceptable hardship for the employee and a result that is no longer compatible with law and justice. The argument that, for example, the planned long-distance trip to Asia cannot be taken and the holiday would thus become "pointless" is not in fact a legal argument that taking the holiday would be unreasonable for the employee. According to the law, the holiday entitlement serves the employee's recreation. The fact that the purpose of recreation can only arise in the case of a long-distance journey and not in the case of a journey within Germany (or even if no travel activity is undertaken at all) cannot be used as a legally supporting argument.

AMICABLE "POSTPONEMENT" OF LEAVE

However, employers who wish to accommodate their employees and "postpone" the authorised leave by agreement must ensure that they respect the general principle of equal treatment. If, therefore, leave is postponed in individual cases, there should be an objective reason for the postponement as a precaution and it should be documented. This could, for example, be a demonstrated heavy workload (certain major project, etc.) in the specific department of the employee who wishes to postpone his leave, or in cases of personal hardship. Otherwise, there could be an obligation to treat all other employees equally and to postpone the vacation of all employees who express a corresponding wish. As a result, employers should be careful with such exceptions.