Germany: Do Employees Have a Right to Half Days’ Leave?

 

By Ius Laboris September 12, 2019
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Regional German labor courts have considered whether employees are entitled to half days' leave and come to different conclusions. This article examines the issue and gives advice on how employers should deal with half-day leave requests.

German holiday law has been subject to constant change in recent years as a result of important decisions by the European Court of Justice and the Federal Labor Court. Until a legal question has been clarified by the highest courts, controversial decisions by the lower courts often contribute to considerable legal uncertainty. The Higher Labor Court Baden-Württemberg recently dealt with the question of whether an employee has a claim against his employer to take holiday in the form of half days of leave and took a different legal view from the Higher Labor Court Hamburg in 2015.

The Initial Case

In the legal dispute, an employee had sued his employer for half a day's leave. The plaintiff, whose family ran a vineyard, was granted half days' leave in previous years to help in the vineyard. The average number of half days of leave granted was eight or 10 per year. In August 2017, the employer unexpectedly informed the employee that it would not grant him more than six half days' leave per year in the future. In his complaint before the Labor Court Heilbronn, the employee sought a ruling that the employer must grant him ten or at least eight half days' leave with a notice period of one day per year. Alternatively, he argued for the company's previous practice of granting half days of leave to the extent to which he was accustomed.

One Court's Decision: No Entitlement to Half Vacation Days

The Higher Labor Court Baden-Württemberg confirmed the first instance decision of the Labor Court Heilbronn, rejecting the complaint in its judgment of March 6. The court made it clear that the Federal Vacation Act did not establish any legal claim to half days' (or other fractions of days') leave.

The judges pointed out that according to the Federal Vacation Act, leave is to be granted sequentially. Exceptions can be made only when urgent company reasons or personal reasons relating to the employee make a division necessary. There were no grounds for an exception here apparent to the Higher Labor Court Baden-Württemberg. In its ruling, the court referred to an old decision of Federal Labor Court from 1965, which determined that granting leave in small increments contradicted the legislative rationale that leave is for recreational purposes.

A "fragmentation and atomization of the holiday into many small units" could not be required by the employee. Equally, an employer granting holiday in this way would not be considered to have honored the employee's holiday entitlement. This would mean that the employee could claim any holiday entitlement that was granted in half days again. The Higher Labor Court Baden-Württemberg also rejected a claim based on company practice, as there was a lack of a collective reference to the practice of granting leave that the employee had asserted.

The Higher Labor Court Baden-Württemberg pointed out that employers can contractually agree to half days of holiday with their employees. However, this is only possible for vacation days that exceed the legal minimum. This potential lifeline brought into play by the court did not help the employee, because he was unable to prove there was any such agreement with his employer.

Another Court's Contradicting Opinion

With its core statement that an employee is not entitled to half days' leave, the Higher Labor Court Baden-Württemberg contradicts the legal opinion of the Higher Labor Court Hamburg. In its judgment of September 21, 2015, the Higher Labor Court Hamburg had in principle confirmed the legality of such a claim by an employee.

Practical Advice

As a result of diverging decisions by different higher labor courts, it remains unclear for employers whether they must fulfil an employee's wish to be granted half days' leave. This legal issue has not yet been clarified by the Federal Labor Court. Until then, a contractual agreement between employer and employee could help by allowing the grant of half leave days for at least some proportion of leave above the legal minimum.

Ius Laboris is the world's largest global HR and employment law firm alliance. The article was written by Elke Platzhoff, an attorney with Kliemt in Düsseldorf, Germany. © 2019 Ius Laboris. All rights reserved. Reposted with permission of Lexology.

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