- Waiting time is different than probationary period
- Leave in the event of termination during the probationary period
- Partial leave and how it is calculated
- How much vacation is there anyway?
- When can employers refuse vacation?
Many employees still have the misconception that vacation during the probationary period is generally excluded. But: That’s not true. There is no direct connection between the probationary period and vacation. Correct is: The Entitlement to full annual leave only exists after six months of service with the company.
The waiting period is different from the probationary period
Since the employment protection after the Dismissal Protection Act (KSchG) only takes effect after a period of six months, new employees are very cautious in the first six months (that is how long a probationary period can last at most). The sensitivity shown is justified, because 25 percent of new jobs are actually terminated during the probationary period.
Many employees mistakenly see a connection between the probationary period and holiday entitlement because of the fact that the six-month period runs at the same time. This has to do with the fact that in the first six months of a new job, Federal Vacation Act (BUrlG) blocks the entire holiday entitlement. In § 4 it says very clearly: “The full vacation entitlement is acquired for the first time after the employment relationship has existed for six months.” The experts therefore speak of one “Waiting period” and that is also six months.
The situation is different if employers expressly approve vacation during the probationary period. After all, no boss refuses a day off when the long-planned wedding is coming up. There may also be special regulations for the remaining leave “brought along” by previous employers.
Leave in the event of termination during the probationary period
Anyone who leaves the company during the probationary period is entitled to leave. Employees can take as much vacation time as they have earned during their working hours. In the remaining period of service, i.e. until the termination takes effect, he or she can claim it. The employers have to grant the vacation.
If they do not do this and if this is no longer possible due to the end of their employment, the employees can claim money for the vacation not granted to demand.
Example: A starts a new job on January 1st. There is an annual holiday entitlement of 30 days. A will be effective April 30 during the six-month trial period at the beginning of April. quit. A has not yet taken leave. Since A earns 10 vacation days in 4 months, the person can request this vacation during the remaining working hours.
Partial leave and how it is calculated
but § 5 BUrlG provides for partial leave in three cases. And that is when the employee
- for example, starts work in July and therefore does not have full holiday entitlement in the current calendar year;
- if the employee leaves the employment relationship before the waiting period has been completed;
- if the employee leaves the employment relationship after completing the waiting period in the first half of the year, for example in September.
How is the partial holiday calculated? The holidays results from one twelfth of the annual leave for each full month of the existence of the employment relationship. The calculation always has to be rounded commercially: Below a value of 0.5, the figure is rounded down, with a value of 0.5 it is rounded up. 8.33 vacation days mean that you are entitled to 8 days of vacation left.
Employees are only entitled to partial leave for each full month of employment in the amount of one twelfth. Partial months that have started are excluded. And: The employment month is not the same as the calendar month. A holiday entitlement of one twelfth only arises if the employment relationship lasts from the 12th of the month to the 12th of the following month.
Example: Employee A starts a new job on January 1 and has 20 days annual leave. Is A on 01.07. still in the company, the person is entitled to the full annual leave of 20 days. Due to the annual holiday entitlement of 20 days, A acquires a holiday entitlement of 1.67 days per month (20 days : 12 months = 1.67 days). After three months, A has already earned 5 vacation days.
How much vacation is there anyway?
Basically that fixes it BUrlG the statutory holiday entitlement. This includes 24 working days, including Saturdays. With a 5-day week, the statutory annual leave is 20 working days.
If the employment contract or the collective agreement provides for annual leave that goes beyond this, the employer can set separate regulations.
During the probationary period, there cannot be a claim back for too many vacation days taken. After all, the employees only receive part-time leave according to the months of employment.
When can the employer refuse vacation?
Separate from the holiday entitlement, whether during the probationary period or in general, is the question of whether the employer has to approve it. The basic rule applies: Employees can already register their vacation during the probationary period. Because it is one of the duties of the employer when planning vacations in the company holiday wishes of the new employees must be taken into account.
However, the employer can make specific holiday requests on a specific date refuse if urgent operational reasons or vacation requests from other employees speak against it (§ 7 para. 1 BUrlG).
The reasons for refusing leave must therefore be company-related, i.e. have to do with work processes and organization. This can be about:
- Increased workload at certain peak times, such as vacation time or towards the end of the year
- Absences of other employees, for example due to illness
- Fixed company holidays on a specific date
- Vacation from other employees in the sense of a comprehensible regulation for vacation replacement.
The probationary period is not an operational reason for refusing vacation days. The operational reason can certainly be related to the probationary period or the new hire (e.g. necessary complete participation in a training course as part of the induction). However, the blanket reference (“You are still in the probationary period”) is not enough. The operational reasons must be “urgent”. Therefore, not every factually comprehensible justification is sufficient. One Balancing the vacation interests of the employees and the operational reasons of the employers must show that the operational interests are to be given priority.
If the interests of the employer do not prevail, they must approve the vacation. In case of doubt, the employer must prove the existence of operational reasons (Burden of presentation and proof).
Vacation and probationary period are two different things. Employees may also take vacation during the probationary period. The claim to full legal leave you only have it after six months. As an employee, you earn a twelfth of your annual leave for each full month. There is no hard-and-fast holiday ban during the probationary period.