Reduction of vacation entitlements due to parental leave after termination of employment not permitted BAG 19.05.2015 - 9 AZR 725/13
The defendant, a retirement home, had employed the plaintiff as an occupational therapist since April 2007. She was entitled to 36 calendar days' vacation with a gross monthly salary of € 2,000 and a five-day week. From December 2010, the plaintiff was on maternity leave until the employment relationship was terminated at the end of May 15, 2012. Thereafter, the plaintiff unsuccessfully asserted her claims for settlement and compensation of vacation for the years 2010, 2011 and 2012 through a lawyer. In September 2012, the defendant declared the reduction of vacation entitlements due to parental leave.
Contrary to the dismissal of the claim by the labor court, the regional labor court amended the judgment and awarded the plaintiff vacation compensation in the gross amount of € 3822.00. The appeal before the ninth senate of the Federal Labor Court was unsuccessful. The reason given for the ruling was that the reduction in vacation entitlement was only declared in September 2012, i.e. after the employment relationship ended on May 15, 2012, and therefore Section 17 (1) BEEG is no longer applicable here, as this presupposes that the employment relationship still exists at the time of the reduction. Despite the dormant employment relationship due to parental leave, vacation entitlements continue to accrue. However, the employer can reduce these by one twelfth for each full calendar month of parental leave in accordance with Section 17 Para. 1 Sentence 1 BEEG. There is no possibility of reduction if the employee is still working part-time during this period. Although there is no entitlement to leave after termination, there is an entitlement to leave compensation.