To date, an employee who still has residual holiday claims at
the end of his employment relationship had to assert these claims
during the ongoing calendar year. This is because, pursuant to
previous BAG case law, the limitation of Sec. 7 para. 3 sentence 1
German Federal Holiday Entitlement Act [Bundesurlaubsgesetz,
BUrlG], pursuant to which holiday must be granted and taken
during the current calendar year, also applied to the claim to
payment in lieu of the holiday because such claim to payment in
lieu was understood to be a replacement (substitute) for the
holiday entitlement which was no longer realisable as a result of
the end of the employment relationship.
This substitution theory has now been relinquished by the BAG.
For employees incapacitated from work beyond the period for
carrying over the holiday claim they have been relinquished in any
event pursuant to the more recent case law of the BAG, due to
requirements of Union law. Through the BAG's decision dated19
June 2012 (docket no. 9 AZR 652/10), the relinquishment of the
substitution theory has now also been confirmed for employees who
are not incapacitated from work.
This is because, in the opinion of the BAG, the statutory claim
to payment in lieu of holiday, as a pure monetary claim
irrespective of the employee's capacity or incapacity to work
does not fall under the regime of the time limits of the German
Federal Holiday Entitlement Act. Accordingly, the BAG granted a
claim to payment in lieu of holiday of an employee whose employment
relationship had terminated on grounds of a legally binding
judgement dated 31 July 2008 and who had first demanded payment in
lieu of holiday for 16 days holiday from the defendant by letter of
6 January 2009.
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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