Half days of leave granted by the employer may be claimed again by the employee due to inadmissible fulfillment of the vacation entitlement.
Baden-Württemberg State Labor Court, March 6, 2019, 4 Sa 73/18
Employees may not demand half days of leave from employers as part of their statutory minimum leave. If employers nevertheless grant half days of leave, this does not comply with their obligation to grant proper leave, at least as far as the minimum leave is concerned. Half days of leave granted in this manner could therefore be claimed again by employees. Deviating provisions in employment contracts are only permissible when they are relating to contractual additional leave.
FACTS OF THE CASE
The employee demanded the granting of half days of leave to the extent those were granted in the past (16 or 20 half days) at short notice without and, alternatively, after taking into account any conflicting company interests. It was disputed between the parties whether such half-day leave was contractually agreed and admissible under the statutory provisions of the Federal Leave Act. The employee argued that, depending on weather conditions, he had to be able to help out at his family's winery at short notice and therefore had to rely on prompt half-day leaves – as in the past. The employer argued that it was not obligated to grant half-day leaves, since this caused additional costs and scheduling problems. Heilbronn Labor Court dismissed the complaint. It held that even if the employer had expected in the past that the leave would be granted unconditionally, it could not be concluded that the employer would be obligated to continue to grant it unconditionally for the future, with the employee taking leave independently, without considering conflicting company interests.
The employee's appeal before Baden-Württemberg State Labor Court was dismissed. The State Labor Court argued that granting half-day leave – even at the employee's express request – did not constitute proper fulfillment of the employee's vacation entitlement and was therefore inadmissible under Section 7(2) Federal Leave Act. As a matter of principle, for the purpose of proper fulfillment of the employee's entitlement, leave had to be granted in a contiguous manner in accordance with Section 7(2) sentence 1 Federal Leave Act. Exceptions would only apply if urgent operational or personal reasons of the employee would require splitting up the leave. On the basis of the general legislative assessment that vacations are to serve the purpose of recreation, fragmentation and atomization of vacation days into many small units (fractions of less than one day's leave), even at the express request of the employee, cannot lead to proper granting of vacation time. Rather, such a granting of leave would lead to enabling the employee to demand the leave again. Pursuant to Section 13 Federal Leave Act, these principles may only be derogated from under an employment contract relating to contractual additional leave, but not in relation to statutory minimum leave.
The employee filed a non-admission complaint with the Federal Labor Court, so it remains to be seen how the Federal Labor Court will resolve this controversial issue once and for all. The Fifth Senate of the Federal Labor Court decided for the first time in 1965 that the granting of half days of leave does not constitute an effective fulfillment of statutory vacation entitlements, because the purpose of the vacation is not maintained and therefore is not at the disposal of the parties, either. Proper fulfillment can only be expected from an "extended continuous vacation period" (Federal Labor Court, July 29, 1965, 5 AZR 380/64). In 1992, however, the Ninth Senate of the Federal Labor Court decided, without dealing with the problems previously raised by the Federal Labor Court in 1965, that granting a single day's leave (Carnival Monday) complied with the proper granting of leave (Federal Labor Court, December 08, 1992, 9 AZR 81/92). In 2006, the Ninth Senate then apparently gave up this view again and decided (again without further justification) that the division of the leave into individual days is inadmissible due to the indivisibility of the vacation time (Federal Labor Court, November 21, 2006, 9 AZR 97/06). According to the opinion of Hamburg State Labor Court and Lower Saxony State Labor Court, the granting of half days of leave does indeed constitute admissible fulfillment of the vacation entitlement, since the employee's wish to split up vacation days is a reason personal to the employee pursuant to Section 7(2) Federal Leave Act. According to Lower Saxony State Labor Court, this decision would not conflict with the Federal Labor Court's decision of 1965, either, since the Federal Labor Court had not reviewed the issue of whether the employee's wish to split up vacation days could constitute a reason personal to the employee (Hamburg State Labor Court, September 21, 2015, 8 Sa 46/14; Lower Saxony State Labor Court, April 23, 2009, 7 Sa 1655/08). Düsseldorf State Labor Court, on the other hand, appears to disagree in answering this question. In 2004, it ruled – like Lower Saxony State Labor Court and Hamburg State Labor Court – that the dividing of leave (3 days in the case at issue) is permissible if it was approved by the employer at the employee's request. In this event, there would then be a reason personal to the employee pursuant to Section 7(2) Federal Leave Act (Düsseldorf State Labor Court, October 25, 2004, 10 Sa 1306/04). In 2007, however, it turned its back on this decision again and argued that it was inadmissible to grant leave on a daily basis – because of the infringement of Section 7(2) Federal Leave Act – since at least 12 working days of leave had to be granted continuously (Düsseldorf State Labor Court, July 25, 2007, 12 Sa 944/07). Most recently, the Federal Labor Court ruled again in 2018 – without further addressing the differing jurisdiction in this respect – that unless fractions of leave days are owed, the exemption from work by granting leave may only be issued for whole days pursuant to Section 7(2) Federal Leave Act (Federal Labor Court 19.06.2018, 9 AZR 615/17).
TIPS FOR USE IN PRACTICE
If employers wish to grant half days of leave to their employees, they should include an explicit provision to this effect in the employment contract or in the documentation of the application for and authorization for leave, which provides for half days of leave to be granted exclusively for the purpose of additional contractual leave. Otherwise, the granting of half-day leaves is strictly discouraged.
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