Managing employee leave correctly: the rules of the BAG

The topic of holidays often seems straightforward in everyday working life - but in reality, it involves a complex interplay of legal requirements and current case law.

Structured holiday management is crucial for employers in order to avoid legal risks and financial burdens.

How does holiday entitlement arise?

Statutory minimum holiday

According to § 3 BurlG, employees are entitled to at least 20 days' holiday per calendar year. employees are legally entitled to at least 20 days' holiday per calendar year for a 5-day week. In the case of a 6-day week, the statutory entitlement is 24 days of holiday per calendar year, so that there is always at least 4 weeks of paid holiday entitlement per calendar year. If you have a severe disability, five days of holiday are added to the statutory minimum holiday entitlement.

Contractual additional leave

Additional leave can also be contractually agreed, but this must be considered separately in legal terms. It should be noted that the statutory minimum holiday must be taken first before any contractual and collectively agreed additional holiday is used up.

Waiting time

The full holiday entitlement generally only arises after six months of employment.

Principle: Take holiday in the current year

Leave must always be taken in the current calendar year.

If it is not taken, it expires - at least according to the basic legal model.

Exception: No forfeiture without the involvement of the employer

According to the case law of the ECJ (judgement of 29 November 2017, case no. C-214/16), which the BAG specified in its judgements of 31 January 2023, case no. 9 AZR 107/20 and 19 February 2026 - 9 AZR 423/16:

Leave only lapses if the employer actively cooperates.

In concrete terms, this means

• Reference to existing holiday entitlement 
• Timely request for utilisation 
• At the beginning of a each Calendar year Information in text form about impending expiry on 31 December of the current calendar year

Without these steps, the holiday entitlement remains in place - sometimes for years.

However, various circumstances can lead to the holiday being carried forward to the following year can be realised. 

Holiday transfer

A carryover of leave to the following year is possible if urgent personal reasons, inability to work or the illness of relatives in need of care, or Urgent operational reasons, such as time-bound or seasonal orders or technical disruptions to operations, prevent the taking of leave until the end of the current calendar year. In these cases, the holiday can generally be transferred by 31 March of the following year become, It is sufficient for the holiday to commence on this day at the latest.

Holiday pay on termination of the employment relationship

The topic becomes particularly relevant when the employment relationship is terminated:

• holiday not taken must be compensated
• Claims can build up over several years
• Missing documentation can be expensive

This is precisely where the risk of a lack of process structure becomes apparent: considerable costs can arise if holiday entitlements are not managed correctly over a longer period of time.

Practical tip: Actively control holiday management

A functioning process includes:

• Regular information for employees 
• Clear documentation 
• Early planning 

Conclusion

Holiday entitlements are not a foregone conclusion. Employers who actively manage and provide information avoid legal risks and create planning security.

If you have any questions on this or other topics, please contact us - we will be happy to advise you.

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