How do you create a new vacation
When changing employers: No vacation without a vacation certificate!
In the event of a change of employer, employees are obliged to present the new employer with a certificate from the previous employer stating the vacation already granted in the current calendar year. Otherwise, the employer may refuse to grant leave:
Vacation entitlement when changing employers in the current calendar year
If an employee's employment relationship begins in the first half of the calendar year (= vacation year), i.e. before July 1, the employee - after the six-month waiting period has expired - not only acquires a proportionate but the full statutory vacation entitlement this year. If you join after 30.06. there is only a partial entitlement in the amount of 1 / 12th of the statutory annual vacation for each full month of the existence of the employment relationship. Pursuant to Section 6 (1) of the Federal Holiday Act (BUrlG), however, the holiday entitlement with the new employer must be reduced by the days of holiday that the employee has already been granted by his previous employer for the current calendar year.
Granting of vacation entitlement only upon presentation of a vacation certificate
According to the case law of the Federal Labor Court (BAG), the new employer is even entitled to refuse to grant vacation until the employee has submitted a certificate of the vacation already granted or paid for by his previous employer for the current calendar year (see BAG v. December 16, 2014, 9 AZR 295/13). In the opinion of the BAG, if employees and employers dispute the existence of a vacation or vacation compensation claim in the labor court process, the employer does not have to actively plead that the employee's previous employer has already granted / paid vacation days for the corresponding calendar year. Rather, the employee bears the full burden of demonstration and proof that the vacation he is seeking has not yet been granted or paid for. Since the previous employer is obliged in accordance with Section 6 (2) BUrlG to issue the employee with a vacation certificate when the employment relationship is terminated, according to the BAG it is easy for the employee to prove outstanding vacation entitlements in the event of a dispute.
Only a few employers require a vacation certificate from the previous employer for new hires in the current calendar year - and in many cases grant "double" vacation. Requesting a corresponding holiday certificate usually saves money: especially in cases where the employee is hired at the end of the first half of the year, the (unabridged) holiday entitlement can in most cases be significantly reduced, since the previous employer usually has one has already granted or settled a substantial part of the claim in kind. Since, in the opinion of the BAG, the employer does not have to "chase after" the vacation certificate, it is worth considering informing newly hired employees at the beginning of the employment relationship (or at the latest when the first vacation request is received) that they will only be able to work after submitting a vacation certificate from the previous employer Have the right to vacation - in order to deduct the days already granted or compensated from the annual vacation entitlement.
This post is part of the #EFARBlogparade #Urlaubsrecht of the expert forum labor law.
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