Micro vacation – a gigantic problem?

On March, 6 2019 the State Labour Court Baden Wurttemberg (docket number 4 Sa 73/18) decided that half day vacation does not fulfil the legal requirements where employees don’t have an entitlement to request such micro vacation.

In the case at issue, the plaintiff filed legal cause against his employer demanding his right to be granted a half day vacation at least 8 times a year. The employer withdraw this request, arguing there was no entitlement to half day vacations but only to vacation for a longer period. Furthermore the expenses resulting out of granting half day vacation were not reasonable.

In principle, the employer is obligated to grant vacation according to the wishes of his employees unless there are urgent company concerns to the contrary. Therefore the employer could only withdraw the plaintiff’s request for the half day vacation if he could prove such urgent concerns. Nevertheless German labour law also provides for granting the vacation in a continuous manner (§ 7 para. 2 German Vacation Law [BUrlG]). At this point a conflict of interest arose, as the employee wished to be granted half day instead of long taking continuous vacation. Therefore the court had to decide, whether the wish of the employee or the requirement to grant holidays in a continuous manner has priority.
The court decided that there is no entitlement to half day vacation.
It pointed out that the rule providing for granting vacation in a continuous manner secures the recreational purpose of the right to vacation. As employees couldn’t recover on micro vacation in a comparable way, half day vacation would not meet the requirements of leave within the meaning of the law. Therefore employees would not be entitled to such a form of leave. These statutory requirements could not be deviated from even by means of a contract.
If the parties to the employment contract agreed to additional vacation (the law provides for a minimum of 24 days at 6 working days a week), these additional holidays could be granted as half day vacation, as the recreational purpose is already covered by the statutory minimum holiday entitlement. However, an appropriate agreement must be reached in this case, according to which § 7 para. 2 BUrlG is to be deviated from. Otherwise the employer can withdraw the employee’s request to micro vacation, arguing that the additional vacation also has to be taken in a continuous manner. Nevertheless such an agreement could also be replaced by a long term practice of granting micro vacation.
Since the plaintiff could not prove either such an agreement or a long term practice, the court decided that even his additional vacation had to be taken in a continuous manner.

Impact: As many employees understandably wish to be granted micro vacation, many employers ignore § 7 para. 2 BUrlG. As the State Labour Court Baden-Wurttemberg now pointed out that half-day vacation does not fulfil the legal requirements, employees could demand to be granted holiday “a second time” in a continuous way instead of as micro vacation. Therefore it is to be recommended not to grant half day vacation unless (1) an agreement with the employee or the working council, allowing such micro vacation was concluded and (2) the mandatory minimum vacation is granted continuously. The plaintiff has appealed the decision. We will keep you informed about the decision of the Federal Labour Court.