Damages for holidays not granted and which have lapsed (Higher Labour Court (LAG) Berlin-Brandenburg, Judgement of 2014-06-12 – 21 Sa 221/14)
In the case underlying the judgement, after the employment relationship had ended, an employee demanded, inter alia, payment in lieu of holidays of the gross amount of EUR 2,073.60, for 24 holiday days from 2012. The employer had not granted this holiday; the employee had also not asserted it previously.
The LAG adjudged the employer to render the payment in lieu of holidays as demanded. Contrary to previous case law of the BAG, there is an entitlement pursuant to section 280 paras. 1 and 3, section 283 of the German Civil Code (BGB) in connection with section 249 para. 1 BGB, to damages in the form of substitute holidays that is converted, pursuant to section 251 para. 1 BGB, into a claim for monetary compensation upon the end of the employment relationship; it is not necessary for the employer previously to have applied for the holidays in a timely fashion.
According to the judgement of the LAG, the employer is obligated under the Federal Holiday Entitlement Act (BUrlG) to satisfy of its own accord the holiday entitlement, as well as the claim to breaks and rest periods in accordance with the Work Hours Act (ArbZG). If the employer fails to comply with this obligation and if the holiday entitlement lapses as a result after the transfer period, the employer must pay damages, and not only if the employer was in default of granting holidays at the time at which the original holiday entitlement expired. Rather, the employer must grant its employees holidays of its own accord, in a timely fashion. Contrary to the previous case law of the BAG (cf. BAG, Judgement of 2011-09-15 – 8 AZR 846/09 – marginal no. 66, AP 10 on section 280 BGB), it does not depend on whether the employees applied for the holidays and thereby placed the employer in default pursuant to section 286 para. 1 sentence 1 BGB. As reasoning the LAG stated that according to both German and European Union law, the claim to paid minimum holidays serves to protect employees' health and therefore falls under occupational health and safety law. In relation to occupational health and safety law, it is recognised that the employer must satisfy its obligations to protect the health of its employees without receiving any prior request to do so.
Recommendation for practice:
In light of the judgement by the LAG Berlin-Brandenburg, employers should grant their employees their holiday entitlements of their own accord, by the end of the transfer period at the latest, to avoid claims to monetary compensation or damages.