If, in cases where an employee is put on garden leave, his holiday entitlement is simultaneously to counted towards such leave, one must ensure that one specifically states which holiday claims the employer wishes to count towards the leave. Any and all doubts in the interpretation of its declaration will go to the detriment of the employer. This was clarified by the BAG in a judgement dated 17 May 2011 (docket no.: 9 AZR 189/10).
According to the case underlying the decision, the claimant had an annual holiday claim of 30 working days. The defendant terminated the claimant's employment relationship by letter of 13 November 2006 with effect as per 31 March 2007. At the same time, it irrevocably released the claimant from his employment duties, counting his holiday entitlement towards this leave and continuing to pay his salary. The labour court decided in the subsequent unfair dismissal procedure by legally binding judgement that the termination was invalid and that the employment relationship had therefore not ended. The claimant then claimed residual holiday for 2007. He was of the opinion that for 2007 the defendant had at best granted him partial holiday for the period from 1 January 2007 to 31 March 2007, but had not intended to count his entire holiday claim for 2007 towards the garden leave. Both the Labour Court and the Regional Labour Court dismissed the case. The Ninth Senate repealed the decision of the Regional Labour Court and granted the complaint.
If an employer puts the employee on garden leave and simultaneously counts his holiday claims towards such leave, then according to general principles this declaration must be interpreted from the perspective of an objective recipient. Accordingly, the declaration must show with sufficient clarity the scope in which the employer wishes to fulfil the holiday claims. It lies in the hands of the employer to clearly stipulate the scope of the garden leave and the inclusion of the holiday entitlement. Any and all doubt and ambiguities in the declaration therefore also go to the employer's detriment. In the case up for decision, in the opinion of the BAG it was not sufficiently clear to the BAG whether the employer wanted only to fulfil the proportionate holiday claim up to and including 31 March 2007 or the entire holiday claim of 30 days for the entire year 2007. Due to this lack of clarity, the BAG granted the employee further holiday claims for 2007.
We would therefore advise wording the inclusion of holiday in the declaration of garden leave more clearly in future. However, holiday can only be counted towards garden leave if the leave is declared irrevocably. In case of a revocable garden leave, the demand to return to work, which can be expressed at any time, opposes counting the holiday claim toward the leave. In this case, the holiday entitlement during the garden leave must therefore be granted explicitly for a certain period. If the inclusion of the holiday entitlement is not declared or not clearly declared, then despite a possible lengthy garden leave, the employee still has a claim to the settlement of his outstanding holiday claim.
Possible wording could be, for example: "The employee is released from the obligation to render his employment services with immediate effect, counting his entire holiday claim for the year xxxx [in case this continues into the next year also: as well as for the year xxxx] towards his garden leave."
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