The German Federal Labour Court recently ruled that the statutory holiday entitlement remains unaffected by an unpaid special leave. This might sound weird but indeed this means that going forward companies have to grant holidays/vacation even for sabbaticals.

In the case the parties had agreed upon an unpaid special leave from January through September 2011. Subsequently the employee claimed payment in lieu with regard to 15 unused vacation days for 2011. The German Federal Labour Court confirmed such claim.

The highest German labour court judges emphasized that employees in Germany are entitled to a statutory vacation claim of at least 20 days (for a 5-days week) per annum. Such claim only requires an employment relationship in place and the expiration of a waiting period of six months. It does not depend on an active fulfillment of the employment relationship. As a result, employees are entitled to vacation also for times during which their employment relationships have been inactive. Any exception needs to be explicitly provided for in the laws – and this is only the case for parental leave and military service where any vacation entitlement shall be reduced by one twelfth per month of the leave.

Please note that companies can agree different rules, ie no holidays for sabbaticals, for any holidays granted in addition to the statutory holiday entitlement. This needs to be set out in an agreement with the employee.

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