Many employers still use this method, which is not always legal, when there is no work available: they send employees on vacation.
However, this is not always lawful.
Regarding vacation planning in the company, the employer or their representative must generally take into account the vacation wishes of each employee. This applies as long as operational considerations do not oppose them, such as large orders or other employees already being on vacation, etc.
Can the employer send me on vacation if there is no work?
Here is a clear yes. As I wrote above, the vacation wishes of the employee generally take precedence first. The employer may then send an employee on so-called “mandatory vacation” when the current calendar year is almost over and the employee still has remaining vacation time available. This is because vacation must be granted and taken within the current calendar year ( § 7 Abs. 3 Bundesurlaubsgesetz ).
Urgent operational needs can also lead to the employer being allowed to send you on vacation, or even not granting any vacation at all. Such needs include a renovation or reconstruction of the business premises, which in our industry rarely leads to a loss of orders. In today’s digital age, it is no problem for the dispatcher to perform their work elsewhere.
Other reasons may include:
- You share a workplace as a part-time employee with another employee. To ensure that this workplace does not remain completely unoccupied, you are not allowed to be on vacation at the same time.
- Your company has designated company holidays during the period from July 1st to July 31st. You cannot demand that your three-week annual vacation be granted in a different month.
- You are a harvest helper and request vacation during the main harvest season.
- In the first week of October, all employees are to be trained on the new computer program. You will rightly not receive any vacation.
While this does not always apply in our industry, these are just additional examples.
Otherwise, the employer is in a difficult position here. In such cases, § 615 BGB may also apply. This states plainly:
The employee offers their labor, but the employer does not accept it. Thus, the employer falls into default of acceptance and consequently has the problem that they must continue to pay the employee even if the latter has not worked. The hours not performed do not need to be made up by the employee, and no vacation may be deducted.
This is also referred to as business risk. And this risk is borne by the employer themselves, not the employee.
However, if an overtime account exists, the employer may stipulate that such overtime be used up. In many employment contracts with an overtime account, there are provisions stating that until hour X, the employer has the right to dispose of these hours and thus can also issue instructions that they must be taken.
Remaining vacation new case law from the ECJ
ECJ judgment of 06.11.2018 – C-619/16; C-684/16
Previously, it was always the case that remaining vacation had to be taken by some companies until a certain deadline in the following year.
Since November 2018, this has changed somewhat. Remaining vacation can still expire, but only if the employer can prove that the employee voluntarily waived this vacation, even though the opportunity to take it existed.
Source: Click here
