If an employment relationship commences with effect from 1 July in a particular year, an employee is only entitled to pro-rated leave entitlement for this year, the Federal Labour Court (Bundesarbeitsgericht, BAG) decided on 17 November 2015 (docket no. 9 AZR 179/15).
In the present case, an employee sued his former employer to claim compensation for his full leave. The employee was employed from 1 July 2013 to 2 January 2014. According to the applicable collective wage agreement (MTV), in every calendar year each employee is entitled to paid leave for 26 working days. However, pursuant to sec. 5 no. 4 s. 1 of the MTV, joining and/or leaving employees will receive annual leave in proportion to their full months of work, ie one twelfth of their annual leave entitlement for each full month for which they were employed in the current calendar year. Any leave that could not be taken within the current calendar year has to be taken not later than 31 March in the following year (sec. 5 no. 6 s. 1 of the MTV). According to sec. 5 no. 6 s. 2 of the MTV, leave compensation could only be paid out after cessation of employment if the leave could not be taken. During the course of his employment, the employee had not been on leave. After termination of the employment relationship, the employer paid the former employee leave compensation for 13 days’ holiday in the gross amount of EUR 1,170.39. The employer claimed compensation for an additional 13 days’ holiday in the gross amount of EUR 1,170.39 plus interest. He alleged that he had an entitlement to full leave in 2013.
The BAG held that the employee had no entitlement against the employer according to sec. 7 para. 4 BUrlG in conjunction with sec. 5 no. 6 s. 2 of the MTV regarding the payment of the additional 13 days’ holiday in the gross amount of EUR 1,170.39 plus interest. Contrary to sec. 5 no. 4 s. 1 of the MTV, the employee was only employed for six full months. Consequently, the employee was only entitled to 13 days’ holiday in 2013. He did not have an entitlement to full leave compensation, only a partial entitlement in the meaning of sec. 5 para. 1 letter a of the BUrlG. Furthermore, sec. 4 of the BUrlG must be considered, which states that the entitlement to full leave compensation may only be obtained when an employee is employed for more than six months and not with the existence of an employment relationship for only six months. This wording of sec. 4 of the BUrlG shows that the waiting period expiring and the entitlement arising do not coincide.