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The Ninth Senate repealed the decision of the Regional Labour Court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
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."
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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