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On your marks! Get set! Vacation! - FAQ on vacation law (Part 3)

June 2022 · Estemated readtime: Min

The most important answers around the termination of the employment relationship

Mitten im Urlaubsjahr sind viele Arbeitgeber:innen veranlasst, sich mit altbekannten und neuen Fragen rund um das Thema Urlaub zu befassen. Die Blogbeitrags-Reihe „Auf die Plätze! Fertig! Urlaub!“ soll Arbeitgeber:innen dabei unterstützen, den Überblick über wiederkehrende Fragestellungen zu behalten und wichtige Fragen rund um das Urlaubsrecht beantworten.

In Teil 3 beschäftigen wir uns mit den Must-Knows bei Beendigung des Arbeitsverhältnisses

Question 1: Must a terminated employee be granted the full annual leave entitlement?

Again, it depends on the individual case. The decisive factor is the point in time at which the employee leaves the employment relationship. If an employee leaves the employment relationship in the first half of the calendar year (i.e. at the latest with effect from the end of 30.06.), vacation is only to be granted on a pro rata basis - one twelfth of the annual vacation for each full month of the existence of the employment relationship (§ 5 para. 1 lit. c BUrlG). In this case, the annual leave entitlement accrued on 01.01. is reduced retroactively.

 

If, on the other hand, the employment relationship continues at least until 01.07. of the respective calendar year, the employee must be granted the full annual leave entitlement.

Question 2: Does a leave of absence after notice of termination affect existing vacation entitlements?

Yes, a declaration of release from work can cause vacation entitlements to lapse. However, only if the release is irrevocable. Only in this case can the employee use the free time to which he or she is entitled on the basis of the vacation entitlement without restriction and in a self-determined manner. If the employee is only revocably released from the obligation to perform work, the vacation entitlement is not fulfilled. This is because in this case the employee must expect to be called back to work at any time during the leave of absence, and is thus restricted in the self-determined use of this time.

Question 3: What information must be included in a leave certificate?

The leave certificate must include the name of the employee. Also, the duration of the employment relationship in the current calendar year and the periods of leave granted or compensated. In this context, the statutory minimum vacation is not (only) to be taken into account, but the vacation entitlement actually received. The new employer can therefore also benefit from a higher vacation entitlement with the previous employer. In the construction industry, there are also special regulations via the system of vacation and supplementary pension funds that prevent too much or too little vacation from being granted in the event of a change of employer.

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