Vacation entitlement in the event of a briefly interrupted employment relationship, BAG 20.10.2015 - 9 AZR 224/14

A short-term interruption of an employment relationship with the same employer with a factual connection does not trigger the waiting period of § 4 BUrlG again with the conclusion of a new employment contract. In such a case, the employee is entitled to full leave in full by adding together the periods of both employment relationships in one calendar year if the waiting period according to § 4 BUrlG is fulfilled.

The plaintiff had been employed by the defendant as an office worker since 01.01.2009. The plaintiff terminated the employment relationship with effect from 30.06.2012. Before the notice period expired, the parties concluded a new employment contract on 21.06.2012 at the defendant's initiative with effect from 02.07.2012. The second employment relationship ended on 12.10.2012 due to termination without notice by the defendant. In the employment contract, the parties had agreed a vacation entitlement of 26 days in both employment relationships. The defendant granted the plaintiff a total of 3 vacation days in May and June 2012.

There was a dispute between the parties as to how many days of vacation compensation the plaintiff could still claim. While the plaintiff assumed that he was entitled to vacation compensation for 26 days of full vacation from 2012 and 7 days of remaining vacation from 2011, the defendant was of the opinion that the plaintiff was at best entitled to a pro rata vacation entitlement of 13 days for the first half of 2012 minus the 3 days already taken and a pro rata entitlement of a further 7 vacation days for the period of the second employment relationship.

The defendant was of the opinion that the termination of the old employment relationship and the start of the new employment relationship meant that the waiting period under § 4 BUrlG began anew, so that the plaintiff could only demand a pro rata vacation entitlement. The plaintiff, on the other hand, is demanding full annual leave for 2012. The first two instances upheld the claim. The Federal Labor Court also assumes that the plaintiff can demand compensation for the full annual leave entitlement for 2012.

If the employment relationship is terminated and then immediately continued, a short interruption is not detrimental to the entitlement to full annual leave if the second employment relationship ends in the second half of the year. This applies in particular if the new employment contract is concluded before the notice period expires.

With this decision, the Federal Labor Court has answered a controversial question in the literature. In its decision published on October 20, 2015, the Federal Labour Court answered the legal question of whether a short-term interruption of the employment relationship is harmless within the scope of the waiting period under Section 4 of the German Federal Leave Act (BUrlG) in the affirmative.

Date: 20. Oct 2015