Holidays Against Your Will? – A stroll through German Holiday Law in times of the corona pandemic

The consequences of the global corona pandemic are also seriously affecting the German economy. Under the impression of the current crisis, many companies are faced with a lot of questions and new challenges, from a labour law perspective. This applies not least to questions concerning the granting of holidays. Employees who are unable or unwilling to take a planned holiday trip due to current travel restrictions or recommendations will often approach the employer with the wish to return their requested and approved holiday. On the other hand, some companies that are currently unable to keep their employees busy will consider sending their staff, or at least individual employees, on a kind of compulsory leave in order to avoid having to take a large amount of holiday when business resumes after the crisis. The following overview is intended to assist in clarifying these various legal issues.

No "return" of holidays already approved

If the employer has already approved a specific request for holiday by the employee, there is basically no turning back. Just as the employer cannot revoke the employee's holiday in such a constellation, the employee is not entitled to have the holiday that has already been approved postponed to another period. In accordance with the exceptional possibilities of revocation for employers, which have been recognised by case law for extreme emergencies (e.g. threatened economic collapse of the company), something else would only apply if it were absolutely unacceptable for the employee to continue to take his/her holiday. However, the latter cannot be assumed, even taking into account the current exceptional situation. In particular does it make no difference for the legal assessment whether the employee can use the period of time for which he/she is released from work by the employer for the purpose originally intended by the employee (e.g. for a holiday trip). Such a circumstance falls entirely within the employee's sphere of risk. In addition, the statutory purpose of the holiday leave, which is to provide the employee with time for recreation by relieving him or her of work duties, does not depend on a specific usage of the holiday time. In case of doubt, the employee can also spend a recreational period of time at home.

Practical advice:

Therefore, once the holiday period has been set, it can usually only be reversed by agreement between employer and employee. A written agreement is not required for this purpose, so that once the holiday period has been agreed, it can also be cancelled if the company does not object to the employee taking up work during the originally planned holiday period.

However, since the employer is worthy of protection in its trust that the approved holiday will be realised, it will have to be assumed, taking into account the principles of good faith, that the employee, especially if he/she only works in the home office, must inform the employer informally in advance of his/her activities contrary to the granted holiday. If an employee fails to do so, the employer's waiver of objections to the commencement of work cannot be interpreted as consent to the cancellation of the holiday. Nor can the employee subsequently claim that he or she should be granted holidays at another time for the relevant period during which he or she worked.

Holidays against your will?

Many employers wonder whether they can use the current period of comparatively low workload for their employees to send employees on a kind of forced holiday. The advantage is obvious: Holiday entitlements could be reduced without any significant impact on business processes; employees would be available to the company again at a later stage of the year when the economy as a whole will hopefully regain momentum.

Company holidays not a suitable means

In this context, the organisation of company holidays which some companies know mainly from the time between Christmas and New Year, is often brought into play. This means that all employees, or at least a large part of the staff, are granted holidays for a certain period of time, during which the company as a whole is usually at rest. The duration of the company holidays is deducted from the holiday entitlements of the individual employees in this case.

Practical advice:

In the current situation, however, company holidays are proving to be an unsuitable means of reducing the number of holiday days. This is primarily due to the fact that, according to case law, company holidays must always be announced several months in advance so that employees can adjust to the holiday period and plan their holidays accordingly. If there is a works council, the employee representatives also have an enforceable right of co-determination in the scheduling of company holidays. Finally, an employer would also have to take into account the fact that even when company holidays are introduced, each employee must be given a fixed number of holiday days which he or she may freely dispose of.

Unilateral granting of holidays to avoid a "holiday congestion"

In this respect, the question arises whether an employer can unilaterally grant holidays also outside company holidays and thus reduce holiday entitlements of its staff. In principle, such a procedure is possible to the extent and as long as an employee has not yet claimed holidays for the remaining time of the current holiday year, because only if the employee has already specifically approached the employer for holidays, the employer must take the employee's holiday wishes into account when scheduling the time of the holiday. Through the employer's declaration to grant holidays for a certain period of time and the subsequent release of the employee during the holiday period, the employer can thus basically fulfil the holiday entitlements of its employees.

However, apart from the special conditions applicable to terminated employment relationships, employees are not legally obliged to accept the employer's determination of the holiday period. They can informally object to the granting of holidays at any time - with the effect that the employer cannot fulfill the holiday entitlement with a release from work. No special reasons need to be provided for this. It is sufficient if the employee is planning his or her holiday differently from the employer's expectations.

Appeal for prompt notification of holiday planning as the ideal solution

To avoid atmospheric disturbances within the employment relationship, employers should therefore not wait for their employees to object in the first place. Instead, the following approach is recommended for companies:

  • Employees should be encouraged in a communication (ideally in writing or by e-mail) to submit all holiday applications for the current calendar year as soon as possible (e.g. until the end of May). In addition, they should be advised that, firstly, requests for holidays received at a later date may be rejected, particularly for operational reasons, for instance, if a large number of employees have already been granted holidays for certain periods in the second half of the year and the presence of the applicant in the holiday period applied for is indispensable for the employer, and, secondly, that holidays which cannot be approved in 2020 may be carried over to the next calendar year in accordance with the statutory provisions, but will in principle expire without replacement at the end of 31 March 2021.
  • According to recent case law, for a holiday to be forfeited, the employer must have specifically enabled the employee to actually take his paid annual holiday (Judgment of the European Court of Justice dated 6 November 2018 - C-684/16; German Federal Labour Court, decision dated 19 February 2019 - 9 AZR 423/16). To this end, the employer must in principle request the employee to apply for holiday and inform him/her clearly and in good time that any holiday not taken of his/her own free will expires at the end of the holiday year or a permissible carryover period. The above-mentioned communication would thus offer the advantage that the employer would at the same time fulfil its obligations to cooperate in the granting of holidays and that holidays not taken in 2020 would thus actually be forfeited.

Additional holiday in case of early taking of holidays

Finally, in order to create an additional incentive to take holidays already at this stage when many employees are less busy, it may be advisable for employers to reward early taking of annual holidays by granting additional holiday days (e.g. one additional day of holiday if at least half of the annual holiday is taken before 30 June, two additional days of holiday if two thirds of the annual holiday is taken before 30 June 2020, etc.). Even when taking into account the principle of equal treatment under labour law, there is nothing to be said against such an offer. In this respect, it would only be relevant to make it clear in communication with employees that this is a corona-specific special regulation which will no longer apply in 2021, when the virus and its effects will hopefully have become manageable.

Dr Johannes Allmendinger