Using up unused vacation days during notice period

Hi folks!

New at this forum, I found some almost related topics via google, so I decided to give this a try.

Does anyone know about German labour laws, does it give rights to the employer to force an employee
to use his/hers unused vacation days during the notice period, just because of internal business reasons?

I feel that I am being mistreated on this matter, as there are 3 of us Finnish employees working, and only
the one with the least amount of days gets payed in addition to his last salary.

I am losing out on, what will eventually amount to over two thousand euros worth of vacation days.

If anyone has any information about this, I would be deeply grateful!

-Tomi

I'm not sure whether you can be requested to work in this case, but in any case you're entitled to some financial compensation if you do.

Some years ago I was posed with the same question and went to the Betriebsrat of the company that I was working for. They checked it out and told me that I had a right to take my remaining holiday at the end of the notice period. I don't remember exactly which law this came out of, but if your company is large enough to have a Betriebsrat (Workers' council) then go and ask them in confidence and they should be able to tell you.

What I am very sure about is that if you cannot use up your holiday before you leave, then your employer should reimburse you for the days that you did not take, although you might need a lawyer to write to him/her to point this out!

There is another way - if you are changing jobs and not leaving the country or entering unemployment then your current employer can give you a document certifying how much holiday you have used out of your allowance - this you give to your new employer and somehow they arrange to let you have this holiday at your new job. Don't ask me how this works - I wouldn't want to turn up at a new job and start demanding holiday that my previous employer didn't let me take, but I know it exists because I had an employer that would have gone along with it. The first I had ever heard about it was when he asked if I had the document from me previous employer about the remaining holiday.

Disclaimer: this is my opinion, and not legal advice.

From my experience (a couple of decades worth): You have to use up any unused vacation days. If there are reasons within the company that you cannot do that - shortage of personnel, deadlines to meet - you are entitled to payment instead. When you fill out the form at the Arbeitsagentur you are asked how many unused days you have. If you cannot take the unused days get written confirmation from your employer. If I recall correctly the vacation payment is anted up with your salary and becomes part of the basis for reckoning your unemployment payments. The Arbeitsagentur does not like that at all.

The thing here that I have a problem with is, that I have about 20 vacation days unused.
And I was led to believe that when my contract ends, those days will be paid with the last
salary if they are not used before the end-date. And I'm going on a vacation right after the
last day, so I dont really need a 3-4 week vacation _before_ my vacation.

But now my employer is forcing me to take them because of business reasons.
This however is not the same for a colleague of mine who is leaving on the same day,
since he has less vacation days, those they can pay.

So my question is, does the labour law give them the right to do this?

Taking the time lways comes before taking as money.
As Sarabyrd pointed out, paying out in lieu of holiday really requires a legitimate business reason.
Because you do of course get taxed on any payout I have NEVER met any regular employee who preferred the money over the time off.

yes you have, MT, stop making such sweeping statements.

Bundesurlaubsgesetz (BUrlG)

Theres a lot of info in that link about procedures having to grant the vacation days if the employee
wants to take them, but not a lot if I choose NOT to use them at this point of my employment.

Because I work for a mega-corporation, I feel that there is no urgent budget related issue
why my days would not be payed in the end.

OG, I really can't remember anyone who wanted the (taxed) money rather than the (untaxed) time.
Indeed, this issue is a frequent bone of contenton in my department at work.


Becasue your employer has to match the social security deductions that will be made when this payout is taxed?
And the HR department has targets to keep their costs down?

Honestly, take the time off, enjoy a holiday, you can get out of Saxony into Bayern or the Czech Rep quick enough.

Could have been done more cleverly IMHO.

When I left my last company I also had around 1 months of vacation/overtime to take. As the 'standard' notice period in Germany is 3 months, I effectively said I was leaving 1 month later than normal and said I would be taking the vacation at the end.

How is the time or the money different from a tax stand point. You are paid x amount of euros gross and y nett per day of work. You are either paid that money for your day of work or you are paid that amount for your day of vacation. If you truly want to maximise your income then you would work until the last day of the three month period and then take either the cash up front or the paid days being employed. The issue wouldn't be tax based.

you met me haven't you? Back when I was single, I gladly had my holiday and overtime paid paid out. I wasn't interested in taking 6 weeks holiday and what amounted to another 7 weeks overtime in total. I took the money. I'd do the same now too but my company won't pay out overtime or holiday, we have to take it.

Let's say you finish working on 30 September. If you take you holidays during that time, everything is normal, you get your normal salary. If you work all those days, the money you have paid out for the holidays no taken is extra. Say it was 3 weeks' holiday; that would actually make your end date 19 October. But legally you finished on 30 September, so your income for that period is increased by the 3 weeks of pay, and you are more heavily taxed on your entire earnings for that month.

Anyway, to the original post, the only way you can get the money paid to you instead of taking the holidays is if both parties agree (which clearly in your case they don't). If one of the parties - employer or employee - insists on the holidays being taken during the notice period, that is legally binding. Any agreement the employer makes with a colleague of yours gives you no specific right to the same treatment.

Just leave work 20 days earlier?

I still don't understand. Let's assume a simple number. You earn 1 euro net per day you work. If you work the whole year, youe earn 5x52 euro (260 Euro assuming you earn wages on State and Federal holidays). Your contract allows you to have 12 days of vacation a year (prorrated 1 day per month worked). If you are given the last day of September as your last day of work. You earn 20 euros net for the month of September (5x4 weeks) and you only have to work 11 business days of the month (5 days per work week x 4 weeks-1 day of vacation x 9 months worked). However, if you worked until the end of September and have the choice of having nine days of vacation or taking nine days of money. You get nine euros in addition to your 20 euros. Or you get 9 euros for the month of October as well. The only exception would be if this lump payment puts you over into a higher tax bracket for the year, but that would be doubtful for most people. Since you are taxed on a percentage basis this would not matter which month you received the payment.

Up till here I am with you. You can't count the money as October earnings though, because you finished working for that employer in September. But yes, you're right, at the end of the year it will all work out ok. But up front you'll be taxed on it. You'd have to be very unlucky for it to push you into a higher earnings bracket. Where it may make a difference is if immediately afterwards you either start a new job, or if you are then unemployed. In both these cases it will push your earnings up slightly.

I think in the OP's case the main point is not the higher taxation, but the fact that his employer won't play ball.

Just a thought, but what does it say in your contract? Look for something called "Freistellung" - because theoretically that would make the holiday a non-issue. The moment the contract is terminated, your employer could let you go home on full pay and say he/she doesn't need you anymore. Normally the clause says something like "any Freistellung will also take the remaining holiday into account".

eg. you terminate your contract to the end of September but have 10 days holiday left. Your employer sends you home. You are then freigestellt until September 15th, and then have 10 days holiday left.

Alternatively, your contract may even have a clause in it saying that you have to take the holiday!

Disclaimer: not legal advice, just my opinion

@gtappend - never seen the clause about the Freistellung actually written into a contract. But in any case, how would that help Tomi - since what he has stated he wants is to work right through his notice period and get the holidays paid on top?

Such a clause implies to me that it's up to his employer whether to pay them out or not and less of a mutual decision. His employer could just say he is "freigestellt unter Berüchsichtung noch zu nehmenden Urlaubstage" and it would then be irrelevant whether or not he wants to work those days or take the holiday - the decision would have been taken for him.

The clause normally looks something like this: "Nach Eingang der Kündigung behält sich der Arbeitgeber vor, den Arbeitnehmer/-in unter Berücksichtung der noch ausstehenden Urlaubstage von seinen Pflichten freizustellen". It tends to be more common in jobs where you have customer contact, eg. sales.

From his first post, it is clear that he has not got a Freistellung AND that he is being forced to take his holidays. This is what he doesn't want - but unfortunately he as an employee has no right to work trhough his notice period and receive his holiday pay on top, even if other colleagues have been granted this.

I got a case like this on my desk today: Our client has sacked someone, her lawyer is saying that she has 21 days vacation left and intends to take them during the termination period "unter Berücksichtigung der gesetzlichen Vorgabe" - according to legal regulations. Bastard lawyer didn't cite the regulation itself, though.
Thing is, she is the sole employee, so our client could say - No way Jose, she cannot leave the office orphaned, she has to work through the last day of the termination period. In that case she would be entitled to compensation as operational reasons prevented her taking the vacation days.

Yes, I realise that he hasn't been freigestellt - my point is that such a clause in his contract could be relevant if he tried to get his holiday paid out, because his employer could turn round and implement the freistellungsclause if he puts on too much pressure to get want he actually wants.

Does vacation time have to accrue to be used during the notice period?

For example, an employee (regular employee, been with the company for a few years) gets 30 vacation days per year and gives notice in January with a three-month notice period such that the last day with the company will be April 30. Can/must all 30 vacation days be taken within the notice period, or is the annual vacation total prorated (e.g., two days accrue per month for a total of 8 days January-April)?

Prorata.

You work 4 months with company A & 8 months with company B: assuming each has annual hols of 30 days it means you have to take 1/3rd = 10 days by the end of April (and any vacation remaining from previous year). At the new company it will be 2/3rds ie 20 days during the other 8 months - except that nominally you dont get to take any vacation during Probezeit - but you may be able to - when I joined current company starting April one year I said I had booked Summer holidays (2 weeks) & they said thats OK - we appreciate being told up front.

Thanks very much!

I had an employee come to me once complaining that their dept manager forced them to go on vacation. His claim, was that it saved the company money.

Anyway, I remained factual and explained the HR policy to the colleage, and that the company was not forcing them to take leave, and that there were no cost benefits involved. If they had unused holiday days and were not taking them now, they are automatically paid out with the final salary, so it is of no inconvenience to the company. Hundreds of thousands of companies operate this way in Germany every day. I recommended that they talked with their line manager again.

However - if there is an employee/Manager problem, the Manager may see fit to urge the employee to take holidays during their final weeks - especially so if there is bad atmosphere detrimental to the workplace of either manager/employee or employee/rest of department.

It is quite easy to stop this discussion about "saving money" if other policies are in place e.g.

1) a staff member must submit their vacation request 4 weeks in advance (that takes care of the next 4 weeks then...)
2) the department must be staffed by a minimum of 7 team members at all times (so forcing you to go on holiday could actually bring the department into workload bottlenecks.
3) you are required to prepare a "handover" of workload to the new colleague who is being recruited to take your place. (The new colleague can't be trained if you have been delegated to train them and you're on vacation...)

I am feeling particularly mean today, so you are getting another set of tips from me - I'm so evil...

Ask to additionally take on top of your "normal" 30 days holiday:
- Some paid Sonderurlaub before you leave
- Bildungsurlaub (nice if you are in NRW and the other states which honour it)
- together with a Null Bock Tag day off
- together with an Umzugstag´
- together with a few days for Wedding etc...

That will go down quite well, I think :-)

according to the german law as i know of it is that your employer can dictate up to 30% of your holidays when they have to be taken.This however is on based on the company i.e. closing down for Xmas or summer holidays.It cannot be done individually.If for some explicit reason you cannot take your holidays before your notice period is up then your employer has to pay them out.The Agentur for arbeit does not like this at all as it ups your unemployment benefit.Always always get something off your employer in writing if this is the case

Hi all,

If one has X vacation days left when they leave a job in Germany, is the employer required to pay the employee for those unused days (ie. by law)?

Also, is it within the employer's rights to insist that the employee takes the vacation days before leaving the job?

Thx for your feedback.

Topics merged by admin

Normally they are either paid out or transferred to your new company (If in Germany, and if they allow it)
Yes, they can make you take the days before you leave. But just to be on the safe side Go talk to the works
council ASAP.

PS: Don't sign ANYTHING!!! Without going to the WCG First.

The employer can ask you to take the days off as vacation or if they choose to let you work your notice they must renumerate your holiday days following your termination.

So basically it sounds like it's at the discretion of the employer whether they want to make you to take the vacation days before you leave.

Yes. Of course it's done on a pro-rata basis, eg: You leave half-way through the year with a 30 day allowance and you've taken 10 days already. They can 'ask' you to take the remaining 5 days due or pay you if they require you to work the 5 days.