Left over leaves after resigning

[zhaider 14]

Hi,

 

Am I entitled to get paid for my left over leaves after resignation if I leave at 31st Dec? I know that you get paid for left over leaves if you resign in the middle of the year but I'm not sure about what happens if the year is also ended. I also know that the leaves carry over to March of next year but obviously I won't be working next year so I'm confused with that.

 

The reason I'm asking is because I wanted to go on vacation in December but now with the increase in COVID cases and uncertainty around lockdowns if I leave the country. I don't want to take any risk and it will be quite boring/bad if I take the leaves and stay at home. I know that my company will force me to take leaves but in these circumstances I think it will just be a waste.

 

Thanks.

[maxie 610]

AFAIK you have to take accured vacation days. Only if this is not possible (e.g. workload too high) will the employer be obligated to pay out days you haven't taken. 

 

https://www.kanzlei-hasselbach.de/2015/resturlaub-bei-kuendigung/07/#Nehmen

Hieraus ergibt sich, dass Urlaub, der wegen der Beendigung des Arbeitsverhältnisses ganz oder teilweise nicht mehr gewährt werden kann, abzugelten ist. Sofern dies möglich ist, müssen die Urlaubstage also grundsätzlich vom Arbeitnehmer noch genommen werden. 

Deepl translation

This means that leave which can no longer be granted in whole or in part due to the termination of the employment relationship must be compensated. As far as this is possible, the employee must therefore still take the leave in principle.

 

The fact that you cannot go on holiday or think it is boring is irrelevant from a legal point of view. 

 

[zhaider 14]

Okay, does that mean I can take some holidays like say 1 day every week or so but not the whole, will that make a difference? Asking because for carry over leaves if I remember correctly the wording is some thing like either due to personal or professional reasons the employee haven't taken the leaves it can carry over to March.

 

I know this much that my company has paid out when the employee hasn't taken the leaves but all the examples I know of they left in the middle of year not until the end like me. That's why I'm confused. I can't ask the employer because they will certainly force me to take the leaves no matter what like they tried to other employees. It's just an accident that couple of employees flights were cancelled that they didn't go on vacation and actually received the payout.

[LeonG 14,810]

According to https://www.gloistein-partner.de/urlaub-in-der-kuendigungsfrist-worauf-arbeitgeber-und-arbeitnehmer-achten-muessen you can refuse or at least protest a one-sided vacation order from your employer.  However, in this case it was you who asked for the vacation first so I think you'll have to take it.

 

Even if you did avoid taking it, your employer could refuse to pay for it based on that you could have taken it in December and chose not to.  At https://www.afa-anwalt.de/muss-ich-meinen-resturlaub-bis-31-maerz-nehmen/#:~:text=Nach%20dem%20Bundesurlaubsgesetz%20muss%20Urlaub,Gr%C3%BCnden%20nicht%20genommen%20werden%20kann. it states that your vacation can be extended until end of March for professional or personal reasons where professional reasons include your employer telling you that you can't go because they need you and personal include being sick.  Not being able to travel would not stop you from taking vacation as you can still relax at home.

  

[Techsmex 13,367]

The falling leaves left after I leave.. who will pick them up after I'm gone?

 

 

[alderhill 1,089]

On 09/11/2020, 12:31:22, zhaider said:

Hi,

 

Am I entitled to get paid for my left over leaves after resignation if I leave at 31st Dec? I know that you get paid for left over leaves if you resign in the middle of the year but I'm not sure about what happens if the year is also ended. I also know that the leaves carry over to March of next year but obviously I won't be working next year so I'm confused with that.

 

The reason I'm asking is because I wanted to go on vacation in December but now with the increase in COVID cases and uncertainty around lockdowns if I leave the country. I don't want to take any risk and it will be quite boring/bad if I take the leaves and stay at home. I know that my company will force me to take leaves but in these circumstances I think it will just be a waste.

 

Thanks.

 

Your mistake 'leaves' is charming, giving the time of year. it's fun to imagine employers giving their staff bags of literal leaves. Maybe at the coca farm in Bolivia. We would however (depending on variety of English) say paid leave/days/time off, vacation/holiday (days), etc. etc. 

 

And no, you are not entitled to a choice of pay out of unused days. For obvious reasons, as many workaholics would take money rather than holidays. As mentioned above, there are certain conditions that could allow it, but IME employers will usually try to avoid these. Perhaps some places are more lenient than others on that. At an old job, I had a colleague (a chief network admin) who was fighting with the company brass (over a year later) for backpay from 20-odd unused vacation days which IIRC were already at the end of their use-by date at the time. In his case, he really was called in for emergency reasons, all-nighters in the IT pit, etc. Our direct/local boss said yes of course, no problem, but the top company execs and beancounters dragged their feet. He was in ver.di and luckily had legal support and eventually got it, IIRC.

 

What is stated in your job contract? I know my current contract explicitly says that they do not pay out unused holidays unless there are exceptional circumstances, with proof and permission, etc.

 

As mentioned already, it seems that you can still take holidays. Whatever you do with the time is up to you, with plenty to do locally even if you can't necessarily sit on a beach in Spain.

[Metall 14,539]

I agree, sometimes typos are so fun (in a good way)  I don't want to change them!

 

[HH_Sailor 3,624]

Your contract gives you a basis for payment  / salary as well detailing your time off allowances.

Any overtime / Mehrarbeit and any vacation time owed to you when you actually leave

employment has to be paid to you.

 

The counterbalance to my statement is that there is nothing stopping you taking your vacation

time starting tomorrow.

 

Sorry but "It's not what I want"  / "that's boring sitting at home" is not a valid argument.

 

With 10 days vacation left over in 2020, You can of course simply leave end of business on the 16th Dec

(assuming a 5 day working week and 25th Dec is a public holiday).

24/31 Dec rules are in your individual contract...

 

If the boss won't let you take vacation - and you have that in writing, then that's different.

Then back to the fact that they now owe you something and you need to approach them

to get this confirmed (again, in writing) so you won't be sueing them next summer for broken promises

made this December.

 

Good luck!

 

 

 

[LeonG 14,810]

Normally your payslips should indicate how many vacation days you have left so it shouldn't be something you'd have to argue about.  If you had 10 days left and couldn't take them, they'd have to be paid out when you quit.  If you have 10 days left and you could have taken them, employer can say sorry but the law indicates that they are out the window on Dec. 31 if you could have taken them and chose not to.  Now, maybe they wont do that, who knows.

 

I've quit something like 3 jobs since I've been in Germany and never had any problem getting left over vacation paid out.  One of those jobs my last day was March 31 and I still had left over vacation from the previous year which they paid out.  However, they did not ask me to take it in March since they wanted me to use the time to train someone to take over for me and they could not say I should have taken it in December since we were very busy.  Besides, that particular employer let you carry vacation over indefinitely because sometimes they were too busy to let people go so if they would have refused to pay me out, other employees seeing that would have put in for all their old vacation asap.

[zhaider 14]

Thanks a lot folks for sharing your feedback on the matter. I think I have a good idea now. The only concern I think I still have is my notice period ends on year end so this was a bit confusing for me.

As for what my contract says, here it is: "Any existing vacation entitlements and any claims for compensation shall be credited in the case of an irrevocable exemption".It's listed under the notice period and employment termination section.

 

Seems like I'm entitled to receive the payout but who knows. I totally understand and agree that off-time has nothing to do with vacation days but in this situation I would prefer not to waste all the vacation days sitting at home. That was the only reason and hence I was looking to see what are my options.

 

 

[Lahwf 46]

Hi,

I am in a strange situation with my job change and the remaining holidays for the year.

I quit my old employer on 30.09.2022 and joined my new company on 01.10.2022.

I had taken 20 holidays with my old employer until 30.09.2022. So, my understanding is that the remaining 3 days (2.5 x 9 = 22.5 = 23 days) would be paid out.

I had sumbitted the Urlaubsbescheinigung from my old employer to my new employer and I can see that I am entitled to 8 holidays for the rest of this year in my company holiday portal (2.5 x 3 = 7.5 = 8).

Today, I was informed by my old employer that all the remaining holidays for this year will be paid out and I cannot take anymore holidays this year.

Is this a normal practice? I really do not need the money and I was looking forward to taking my holidays in November.

 

[LeonG 14,810]

5 hours ago, Lahwf said:

Hi,

I am in a strange situation with my job change and the remaining holidays for the year.

I quit my old employer on 30.09.2022 and joined my new company on 01.10.2022.

I had taken 20 holidays with my old employer until 30.09.2022. So, my understanding is that the remaining 3 days (2.5 x 9 = 22.5 = 23 days) would be paid out.

I had sumbitted the Urlaubsbescheinigung from my old employer to my new employer and I can see that I am entitled to 8 holidays for the rest of this year in my company holiday portal (2.5 x 3 = 7.5 = 8).

Today, I was informed by my old employer that all the remaining holidays for this year will be paid out and I cannot take anymore holidays this year.

Is this a normal practice? I really do not need the money and I was looking forward to taking my holidays in November.

 

As far as I know, when you quit, you'd normally just get x months worth from the old employer and y months remainder of the year worth from the new one.  It's a clean break.  The old employer pays you whatever days you accrued there and didn't manage to take. Then starts the era of the new employer and you accrue vacation there and deal with them on when to take it.

 

There is however another option if you quit in the 2nd half of the year and that is getting your full vacation for the year from your old employer and according to the Urlaubsbescheinigung, nothing from the new employer.  This could be beneficial for you if you want the money and not the days or if you will not be taking up new employment for the rest of the year.  They do however not have to pay you 2.5 days per month for the time  you didn't work.  The minimum vacation would suffice.

 

It sounds like your old employer seems to think you picked option 2 if they want to pay you the full years worth of vacation.  What does your Urlaubsbescheinigung say?  I am sure you can clear this up with them.  

[Lahwf 46]

Thank you @LeonG for the reply.

I agree with what you wrote and my understanding is that if I wanted the payout instead of the holidays, I should have discussed it with my previous employer.

 

I was on the call with the HR department from my old company yesterday. They told me that I should have sent them an email before leaving the company, informing them that I don't need the payout and would like to carry over the rest of the holidays to my new company. Also, I am told that it is too late to send an email and it won't work now (I have never heard of such a rule).

 

The Urlaubsbescheinigung is a bit vague. The exact sentence in there is as follows: "Der Jahresurlaubsanspruch im laufenden Kalendarjahr beträgt 30 Tage; davon wurden von uns (anteilig) 30 Urlaubstage gewährt bzw. abgegolten."

 

I've given this letter to my current HR and she infromed me that I still have 8 holidays left this year and I should take them before the year ends.

I received my salary slip from my new company today, and I can see that I still have 8 holidays remaning this year.

[LeonG 14,810]

The Urlaubsbescheinigung is not vague. It says you had 30 days and have taken or been paid for 30 days. That means your new HR should actually be saying that no, you are not getting 8 days from them because you already got or were paid your full vacation by old employer.

 

However, if the new HR insists, why not take it? If they later realize that you weren't supposed to get it, you can borrow it from next year's allotment or take it from banked overtime.

[Lahwf 46]

Thanks, I'll apply for my holidays and see how it goes..

[HH_Sailor 3,624]

1 hour ago, LeonG said:

The Urlaubsbescheinigung is not vague. It says you had 30 days and have taken or been paid for 30 days. That means your new HR should actually be saying that no, you are not getting 8 days from them because you already got or were paid your full vacation by old employer.

 

Not quite...

 

I take the word 'anteilig' to be relevant here.

@Lahwfdidn't take / get paid for 30days, but rather the pro rata of the 30day allowance.

 

The new HR should allow some days this year.

[PandaMunich 16,704]

31 minutes ago, HH_Sailor said:

I take the word 'anteilig' to be relevant here.

@Lahwfdidn't take / get paid for 30days, but rather the pro rata of the 30day allowance.

Nope, that "(anteilig)" is just a text block that has remained in the sentence.

 

The relevant thing is that they confirm that they already paid out and/or the employee took 30 of 30 possible vacation days for 2022:

5 hours ago, Lahwf said:

The exact sentence in there is as follows: "Der Jahresurlaubsanspruch im laufenden Kalendarjahr beträgt 30 Tage; davon wurden von uns (anteilig) 30 Urlaubstage gewährt bzw. abgegolten."

--> no vacation days left, just like @LeonG said.

[Lahwf 46]

Thanks everyone for the replies.

@PandaMunich Are they in their legal rights to deny the rest of my vacation days and pay me instead (without asking me)?

I never asked them to do it or had any discussion with the HR about holiday payout.

It is going to be an expensive lesson for me as I'll have to cancel my flights, airbnbs and car rentals that I planned for my vacation.

[PandaMunich 16,704]

1 hour ago, Lahwf said:

Are they in their legal rights to deny the rest of my vacation days and pay me instead (without asking me)?

I never asked them to do it or had any discussion with the HR about holiday payout.

It is going to be an expensive lesson for me as I'll have to cancel my flights, airbnbs and car rentals that I planned for my vacation.

That is a question that you would need to ask a specialised lawyer for labour law (Fachanwalt für Arbeitsrecht).

For example, Peter Hützen, he does consultations in English: https://michelspmks.de/en/team/peter-huetzen/

[LeonG 14,810]

24 minutes ago, Lahwf said:

Thanks everyone for the replies.

@PandaMunich Are they in their legal rights to deny the rest of my vacation days and pay me instead (without asking me)?

I never asked them to do it or had any discussion with the HR about holiday payout.

It is going to be an expensive lesson for me as I'll have to cancel my flights, airbnbs and car rentals that I planned for my vacation.

 

You could talk to your old employer HR again and beg them to change this.  I am sure they still can.  Just paperwork they might not care for.  Your Urlaubsbescheinigung should say:

"Der Jahresurlaubsanspruch im laufenden Kalendarjahr beträgt 30 Tage; davon wurden von uns (anteilig) 23 Urlaubstage gewährt bzw. abgegolten."

That way, you should get 7 days from your new employer for a total of 30 days this year.  If they refuse, as I said before, if the new employer is insisting that you have 8 days and need to take them, you can take them and clear it up later if they change their mind.  If you are worried about doing that, you can discuss with the new employer HR what the old employer HR said and ask if you can take the 8 days unpaid or from overtime if you have it since you've already planned the trip.

As far as I know, employers usually don't pay you the full yearly vacation if you quit unless you request it because why would your old employer prefer to pay you 7 extra days rather than let your new employer handle it?  However, it may have been in your job contract with old employer that this is the default.