Payment of outstanding leave after a dismissal - The know-how you need

After a dismissal, many questions remain unanswered. One of them is the issue of remaining leave. The Federal Leave Act (Bundesurlaubsgesetz) stipulates that existing leave entitlement does not expire because of a dismissal!  Holiday can be taken until the end of the employment relationship. That means, your employer must even grant it, even if it covers the entire period of notice. He also cannot complain that the handover is tight.

The leave must therefore be refused by the employer. In fact, it must also be taken by the employee. Holiday compensation/payment is only possible in exceptional cases. We will now explain when and how exactly you should proceed!

Exceptional case of holiday compensation

When can money be demanded instead of leave? Quit clear... Whenever you have more holidays than working days at the end of the employment relationship.

A distinction must be made here between:

• A termination without notice where the notice period is so short that all remaining leave will be left open.
• An illness of the employee during the notice period. Strangely enough, this often happens the day after the dismissal, until the end of the notice period.  No leave is used in this case, which is why the last pay slip should be accompanied by the leave compensation.

These cases should be taken into account both in the case of termination by the employer and by the employee.

The calculation

1. holiday entitlement for the full year

According to the Federal Holiday Act, every employee is entitled to at least 24 days of holiday. This only applies in the case of a 6-day working week. In the case of a 5-day working week, at least 20 days of holiday must be granted. Please read your employment contract carefully! It may stipulate something different, e.g. 30 days of leave.

2. remaining holiday for this year

Your entitlement depends on the date of termination of your employment. If it ends in the first half of the year or on the 30.06, you are entitled to 1/12 per month. For example, if you are entitled to a total of 20 days' leave and your employment ends on 30 June, you must be paid 10 days' leave.

If it ends in the second half of the year or after the 30.06, you are entitled to the full statutory holiday entitlement. You only need to deduct the holiday days already taken. This difference results in the existing remaining leave.

3. value of a day of leave

• For a fixed monthly salary: monthly salary x 3 / 13 / working days per week

Example: 3000 EUR x 3 / 13 / 5 days = 138.46 EUR

• In the case of so-called fluctuating salary components, i.e. if you are paid per hour, the average of the last 13 weeks must be calculated.

In case of illness, regardless of the duration, you are still entitled to said pay. If you are unable to work for one year, the remaining leave is carried over to the following year. Only after 15 months does such an entitlement expire.

We recommend that you discuss your case with an employment lawyer. We guarantee an honest assessment of your situation. Feel free to contact us by phone for a free initial assessment.