German holiday law has been subject to constant change in recent years as a result of important decisions by the European Court of Justice and the Federal Labour Court. Employers are strongly advised to keep abreast of the current state of Supreme Court jurisdiction. But caution: until a legal question has been clarified by the highest courts, controversial decisions by the lower courts often contribute to considerable legal uncertainty. The Higher Labour Court Baden-Württemberg recently dealt with the question of whether an employee has a claim against his employer to take holiday in the form of half days of leave and took a different legal view to the Higher Labour Court Hamburg in 2015.

The initial case

In the legal dispute, an employee had sued his employer for half a day’s leave. The plaintiff, whose family ran a vineyard, was granted half days’ leave in previous years to help out in the vineyard. The average number of half days of leave granted was eight or ten (16 or 20 half days) per year. In August 2017, the employer unexpectedly informed the employee that it would not grant him more than six half days’ leave per year in the future. In his complaint before the Labour Court Heilbronn, the employee sought a ruling that the employer must grant him ten or at least eight half days’ leave with a notice period of one day per year. Alternatively, he referred to the company’s previous practice of granting half days of leave to the extent to which he was accustomed.

Higher Labour Court Baden-Württemberg: No entitlement to half vacation days

The Higher Labour Court Baden-Württemberg confirmed the first instance decision of the Labour Court Heilbronn, rejecting the complaint in its judgement of 6 March 2019 (Case No. 4 Sa 73/18). The court made it clear that the Federal Vacation Act did not establish any legal claim to half days’ (or other fractions of days’) leave.

The judges pointed out that according to s 7 paragraph 2 sentence 1 of the Federal Vacation Act, leave is to be granted sequentially. Exceptions can only be made where urgent company reasons or personal reasons relating to the employee make a division necessary. There were no grounds for an exception here apparent to the Higher Labour Court Baden-Württemberg. In its ruling, the court referred to an old decision of Federal Labour Court from 1965, according to which granting leave in small increments contradicted the legislative rationale that leave is for recreational purposes.

A ‘fragmentation and atomisation of the holiday into many small units’ could not be required by the employee. Equally, an employer granting holiday in this way would not be considered to have honoured the employee’s holiday entitlement. This would mean that the employee could be claim any holiday entitlement that was granted in half days again. The Higher Labour Court Baden-Württemberg also rejected a claim based on company practice, as there was a lack of a collective reference to the practice of granting leave the employee had asserted.

The Higher Labour Court Baden-Württemberg pointed out that employers can contractually agree half days of holiday with their employees. However, this is only possible for vacation days that exceed the legal minimum. This potential lifeline brought into play by the court did not help the employee, because he was unable to present or prove there was any such agreement with his employer.

Higher Labour Court Baden-Württemberg vs. Higher Labour Court Hamburg

With its core statement that an employee is not entitled to half days’ leave, the Higher Labour Court Baden-Württemberg contradicts the legal opinion of the Higher Labour Court Hamburg. In its judgment of 21 September 2015 (Case No. 8 Sa 46/14), the Higher Labour Court Hamburg had in principle confirmed the legality of such a claim by an employee. This finding was made on the basis that s7 (1) of the Federal Vacation Act does not provide that a leave request can be refused on the grounds that the leave is not requested for a recreational purpose. In addition, the question of when recuperation occurs is purely subjective and only partially open to legal assessment.

Practical advice

As a result of diverging decisions by different Higher Labour Courts, it remains unclear for employers whether they must fulfil an employee’s wish to be granted half days’ leave. This legal issue has not yet been clarified by the Federal Labour Court. Until then, a contractual agreement between employer and employee could help by allowing the grant of half leave days for at least proportion of leave entitlement above the legal minimum.