Employees in Germany are generally obliged to take their holiday leave by the end of the year. Otherwise, according to the Federal Holiday Act, there is a risk of holiday being forfeited. In this context, however, employers have a duty to co-operate, which includes informing employees in writing of the impending expiry of their leave.
We clarify when you can carry over remaining leave into the new year, what regulations are provided for by law and how much remaining leave you are entitled to in the event of termination.
What is remaining leave? Quite simply, this term describes unused days of leave from the contractual or statutory entitlement to holiday leave within a calendar year.
Employees generally have a statutory entitlement to paid holiday leave. In accordance with the Federal Holiday Act (BurlG) this must comprise at least 24 working days per year in the case of a six-day week and 20 days in the case of a five-day week. Working days are all calendar days that are not Sundays or public holidays. ImportantOther agreements can also be made in the employment contract or collective agreements, which are then binding. § Section 3 BurlG merely sets out the minimum requirements that must be observed by employers.
Basically, the term "remaining leave" refers to the days of leave not yet taken at the end of a year. The law stipulates that holiday must be taken in the respective calendar year. In accordance with Section 7 (3) BurlG transfer is only permitted in exceptional cases, namely if:
"... urgent operational reasons or reasons relating to the person of the employee justify this."
One of these exceptional cases is, for example, if you as an employee fall ill during the planned holiday and the sick days cannot be attributed to the holiday period. annual holiday entitlement according to § 9 BurlG should be taken into account. This is the case if you present a medical certificate of your illness during the holiday period.
It is also possible to carry over remaining holiday if you had intended to take holiday at the end of the year, but this cannot be granted for operational reasons, for example due to too many cases of illness in the team. An increased workload in the retail sector in the run-up to Christmas can also lead to remaining holiday. The same applies if other employees are given preferential leave for social reasons. according to § 7 para. 1 BurlG and you therefore had no opportunity to take your holiday. If you have accumulated remaining holiday days at the end of the year for the reasons mentioned above, you must take them within the first three months of the new calendar year. This regulation prevents employees from accumulating unused holiday days.
AttentionRemaining leave is not only regulated in the Federal Leave Act. Company agreements and, in particular, collective agreements are also relevant. If a special collective agreement applies in your industry or in your company, it is advisable to check it with regard to residual leave.
If employees have not taken their remaining holiday days by the end of the year and none of the above reasons apply, they do not automatically expire. This regulation is based on a judgement of the European Court of Justice (ECJ) of 29 November 2017 (Case C-214/16) and a decision of the Federal Labour Court (BAG) of 19 February 2019 (Ref. 9 AZR 541/15)which stipulate a European-compliant interpretation: The remaining holiday no longer expires automatically!
Employers are therefore obliged to fulfil their duty to inform and cooperate. Specifically, this means that you must explicitly inform your employees inform about open holidays and the statutory expiry periods or those stipulated by special regulations. This information should be provided in writing and it is recommended that an acknowledgement of receipt be archived in order to have proof of the notification of the imminent expiry of the remaining leave in the event of a dispute.
At the same time, as an employer you must ensure that it is possible to take the holiday until it expires. If you do not fulfil this obligation, this does not lead to the automatic forfeiture of holiday entitlements; rather, the entitlements accumulate for each year in which you do not fulfil this obligation. Please note that (former) employees can also claim holiday entitlement up to three years after the respective year. Entitlement to remaining leave (or financial compensation).
In the event of dismissal, the employee is entitled to the remaining holiday, regardless of who gives notice of dismissal. The date of termination determines the entitlement to the remaining holiday days:
- Upon termination of the employment relationship before 30 June the employee receives one twelfth of the annual leave for each full month worked in the current year. This is regulated in § Section 5 (1) BurlG.
- In the event of cancellation after 30 June the employee is entitled to the full statutory holiday entitlement for the entire calendar year. Any additional contractually agreed holiday days may only be reduced proportionately by dividing the holiday entitlement into twelfths. However, this may not be less than the employee's statutory holiday entitlement.
Example: Anna, a lawyer in a renowned law firm, works 40 hours a week from Monday to Friday in accordance with her employment contract. Her employment contract provides for a total annual holiday entitlement of 28 days, of which 20 days are stipulated by law. After giving notice on 31 August, Anna would like to take her remaining holiday during the notice period of 4 weeks. But how many days' holiday is she entitled to? According to statutory provisions, Anna receives the full statutory holiday entitlement of 20 days, as she terminated the employment relationship after 30 June. The employer may not reduce her holiday entitlement proportionately, as this would fall short of the statutory minimum holiday entitlement.
AttentionEmployees have according to § 4 BurlG only have full holiday entitlement if they have worked for the company for at least six months! The remaining holiday should therefore be taken during employment in the event of termination. If this is not possible for operational reasons, there is also the option of paying out the remaining holiday entitlement.
In accordance with § 17 Para. 2 BEEG The regulation for leave days not taken prior to the start of parental leave is set out in the German Parental Leave Act. The remaining leave can be taken after parental leave in the same leave year or in the following year. The same applies to holiday entitlement during maternity leave. If the employment relationship ends during parental leave, for example due to the expiry of the contract, any leave not taken must be paid back. in accordance with § 17 Para. 3 BEEG be compensated.
Example: Lena works in a marketing agency and is planning to take parental leave. According to her employment contract, she is entitled to 30 days' annual leave, of which 20 days are set by law. However, before she goes on parental leave, Lena was only able to take 10 days' leave. In accordance with the provisions of her employment contract and the Maternity Protection Act, she can claim these remaining 10 days of unused leave after her parental leave in the same leave year or in the year following her parental leave. If her employment ends during her parental leave, her unused leave would have to be compensated accordingly.
At the end of each year, you can carry out detailed holiday planning together with your team to prevent the accumulation of many remaining days of holiday. ZEP makes it easy Simple and clear digital. Thanks to the graphic display, every team member can immediately see who is absent at what time.
You can also use our Excel or pdf template for your team holiday planning. For the current calendar year, it allows you to plan the holiday of up to 20 employees in parallel. The calculation of the individual remaining holiday days is carried out automatically using stored formulas. The holiday planning template therefore provides a transparent and cross-team overview. This allows you to keep an eye on your team's workload and to comply with and easily track holiday entitlements.
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