At the start of the year, employees submit their leave applications and book their summer vacations after receiving approval from their managers. But what happens if operational requirements (for instance, an unexpected major order or the sickness of a large number of other employees) mean that an employee who is owed leave can no longer be spared, but they nevertheless refuse all requests from their employer to postpone or even cancel their vacation?
Once Granted, Leave Cannot Be Canceled
Unfortunately for employers, both employer and employee are bound by the leave that has been granted. Employees are under no obligation to take operational requirements that arise suddenly and stand in the way of leave into account. Legal precedent has established that employers have no right to expect an employee to postpone or even cancel their vacation, even in the event of staff shortages.
The Federal Labor Court has not yet definitively ruled on whether something different applies in genuine emergencies when the company is in »real« danger. There are good reasons in favor of permitting leave that has been granted to be canceled again as an exception, at least in extreme cases. For this to apply, however, a severe change in actual circumstances occurring after the leave has been granted and approved must make it unreasonable for the employer to continue to grant the leave.
This is because the risk of incorrect staff planning lies with the employer. They must ensure adequate human resources are kept in reserve. The requirements for the acceptance of an »extreme case« are therefore very high, and in the rarest cases the employer must furnish proof of this in practice. One example of an exceptional case might be the sickness-related absence of a large number of employees that would force the employer to suspend operations temporarily despite careful staff planning, if the vacationer were not to be recalled.
Possible Options for Employers
So what possible ways out exist, from the employer perspective? Can leave be granted, subject to later cancelation? Once again, the answer is clear: With respect to the statutory minimum leave according to Section 3 of the BUrlG (German Federal Law on Vacation), it is not possible to grant leave conditionally or to make an agreement that leave will be canceled or not taken if required. Agreements to this effect contravene the circumvention ban in Section 13 Para. 1 of the BUrlG and are invalid. Moreover, should an employer reserve the right to cancel leave when granting it, it is failing to meet the employee's vacation entitlement. Any leave granted conditionally only will not count against the statutory vacation entitlement. However, with respect to contractual leave that exceeds the statutory minimum (20 days of leave per year for a five-day week), granting it conditionally is possible. This has to be done with the consent of the employee, however, and the burden of proof lies with the employer.
The »Digital World«: A Way Out?
Thanks to smartphones and laptops, it is often no longer necessary to be physically present at the workplace. Employees can be contacted anywhere and at any time in any case. So is the fact that leave cannot be canceled once granted only a pseudo problem? By no means: because if an employer orders an employee to be available when they are on vacation, the outcome is the same as in the case of conditional leave. The vacation is not granted correctly and the vacation entitlement is not reduced.
Employers are recommended to forecast actual staff requirements during vacation periods when granting leave. Once leave has been granted, an employer is reliant on an employee's willingness to postpone or even cancel their vacation in the event of sudden staff shortages. If an employee is willing to do this, they are entitled to request the reimbursement of any needless expenses that they have incurred from the employer (for instance, cancellation fees and costs for an early return from a vacation).