Remaining vacation upon termination: Successfully enforce your claims!

For all regulations on vacation days, it is worth taking a look at the provisions of the German Federal Leave Act (Bundesurlaubgesetz - BurlG). Section 7 (4) BUrlG states:

„If leave can no longer be granted in whole or in part due to termination of the employment relationship, it must be compensated.“

Compensation here means financial remuneration for vacation not taken. It follows from the above paragraph that, if possible, the remaining vacation days must always be taken. If this is not possible due to a lack of remaining working days or for operational reasons, the vacation must be compensated financially.

This is the case if there are too few working days left before the end of the employment relationship to take the leave or the employer is unable to grant leave for urgent operational reasons. The missing days are then compensated financially. This is particularly common in the case of termination without notice.

It is worth taking a look at § 11 BUrlG. It is written there: „Holiday pay is based on the average earnings received by the employee in the last thirteen weeks before the start of the vacation.“ Remuneration for additional overtime is not included here. You can calculate the value of a vacation day as follows:

Monthly salary x 3 /13 /working days per week = value of one vacation day.

You then have to multiply this by the number of vacation days outstanding and you will receive your gross vacation pay.

An example: You earn 4000 euros gross per month, work five days from Monday to Friday and still have three vacation days left at the end of your employment. Then do the math:
4000 x 3/13/5= 184.61. This is the value of one vacation day. You then multiply this by your three remaining vacation days: 184.61 x 3= 553.84 euros gross.

If you work irregular hours or have no fixed income, there are special circumstances. It should be noted that commission is also part of the salary and therefore part of the vacation pay. When calculating this, the average commission value of the previous 13 weeks can be added.

As vacation pay is regular income, it is also taxable.

No! If you fall ill after the start of your vacation days and have a certificate of incapacity for work issued, these days will not be counted towards your remaining vacation. If you are unable to take the vacation days before your last day of work, they must be compensated financially. For example: If you have ten remaining vacation days before your employment ends, but are on sick leave for five days due to illness, the employer must compensate you financially for five days at the end.

Tip: Even in the case of a leave of absence, sick days do not count as vacation days.

It is possible for your employer to release you from work in individual cases, stating reasons and deducting the remaining vacation. Please note the difference between revocable and irrevocable leave of absence. If you are granted a revocable leave of absence, your vacation entitlement remains due to permanent availability and may have to be compensated financially after the end of your employment. In order to fulfill vacation entitlements, the leave of absence must be irrevocable.

In the case of a termination agreement, it is particularly important that clear provisions are agreed. In practice, employers often release their employees after a termination agreement has been signed. If the leave of absence is irrevocable, the remaining vacation is offset against the days released. You therefore lose one day's remaining leave for each day of leave. If the remaining working time cannot be covered by the remaining vacation days, the outstanding vacation days will be paid out.

Important to know: So-called „compensation and settlement clauses“ in termination agreements can affect the remaining vacation. These should therefore be checked carefully!

No. If there are not enough remaining working days on which the remaining vacation can be taken, the days must be compensated financially.

No. Your employer is not permitted to reduce your leave entitlement if you have taken parental leave. You are still entitled to the full amount of leave.

It is possible that contractual agreements on vacation compensation are made that go beyond the BUrlG. However, these agreements must not be to the detriment of the employee and ignore mandatory statutory provisions. It is also possible for the employee and employer to contractually agree on a higher financial settlement, for example, if the employee waives the entitlement to compensation in return.

If the remaining working time in the company can no longer cover the full vacation period, the employee is entitled to financial compensation. A three-year limitation period applies here in accordance with Section 195 BGB. But beware: shorter limitation periods are often stipulated in contracts. The claim must often be asserted within two to three months. Therefore, always observe the preclusive periods and report the vacation compensation early!