Are employees in Germany entitled to the popular “extended weekends” if they had to work the year before? Do employees without children have to give way to colleagues with families? Karsten Kahlau from the law firm Wittig Ünalp, which specialises in German labor law, and the lawyers from R+V and ARAG Versicherung have summarised the most important questions and answers.
“Long weekends”, adjacent to public holidays for example, are often seen as a great opportunity to go on a trip and gain a short breaks without sacrificing valuable allotted vacation days. They are therefore particularly popular with staff in companies, but that also means they fiercely fought over.
No chance of enjoying a long weekend without children?
Employees without children of their own often report that it is difficult for them to get leave over Christmas or Easter, for example, because they have to give way to other colleagues. But is the company allowed to refuse leave because of this? The answer is "yes". Employers can, according to section 7 of the Federal Leave Act (BurlG), bring forward or deny holiday requests on the basis of social considerations.
Thus, the leave request of a childless person may be refused if a colleague is deemed to be in greater need of this day off, because of their children.
Entitlement to popular long weekends
Is there a right to long weekends, for example, if one has worked the year before? Even if the idea sounds fair, the answer to this question is "no". "The fact that I had to work the previous year does not mean that I automatically have time off the following year," explains Karsten Kahlau from the employment law firm Wittig Ünalp. "Unless there are corresponding contractual regulations."
Christmas Eve and New Years Eve are not public holidays
Employees are generally not allowed to work on public holidays due to the regulation of the Working Hours Act. However, only Christmas Day and Boxing Day are considered public holidays in December. December 24 and 31 on the other hand are not. Working on these days is therefore legal.
Still, according to section 10 of the Working Hours Act, there are exceptions to the ban on working on public holidays. For example, employees within the catering industry or in the medical sector are excluded from the ban on working on public holidays. There is still no legal entitlement to a wage supplement, though.
If employees want to take these days off, they must apply for leave in the regular way. "It is at the discretion of the company whether they count as full or half working days or are completely free," says Michael Rempel, a lawyer at R+V Insurance.
Often, collective agreements also regulate the obligation to work in the last week of the year. The company is then bound by this. However, it can decide for itself who may take leave before Christmas and over Christmas and New Year’s Eve – and who may not. Once a holiday has been approved, it cannot be revoked or postponed. Even "forced leave" at the end of the year is not possible without further ado. "In this case, there must be urgent operational concerns. In addition, the company must announce the company holidays in good time," explains R+V expert Rempel. As a rule, a general holiday ban must be agreed with the works council.
Not available on holiday
Those who want to have their rest on holidays or holiday have no obligation to be spontaneously available for work. "Business mobile phone or not: the company cannot demand that employees be reachable," Rempel continues. The only exception is on-call duty. The situation is also different if employees voluntarily want to continue working on a project scheduled at short notice during this time. If the day off turns into a working day, individual arrangements must be made, for example, the days off must be credited retroactively.
Right to holiday bonuses
There is no legal entitlement to so-called holiday bonuses. There is only a premium for night work on public holidays. Otherwise, employees who work on Sundays or public holidays are entitled to an alternative day of rest. However, in most cases it is not the legal agreement that applies, but the contractual or collectively accepted agreement. And the individual right to possible bonuses may also be stipulated there.
The appropriate court ruling
If bonuses are provided for work on public holidays, they are usually only paid on public holidays. The complaint was filed by a plant operator and fitter who, according to the collective agreement, was entitled to a bonus of 135 percent per hour for work on public holidays. According to the collective agreement, the Sunday bonus was only 25 percent. The man worked on the Sundays of Easter and Whitsun, and had hoped to receive the 135 percent bonus. However, as these days are not public holidays in the federal state concerned, he did not receive a public holiday bonus, according to the ARAG experts (German Federal Labor Court, File No.: 10 AZR 347/10).
Surcharges and taxes
Lucky are those who have to work on public holidays and receive a supplement. It is worth it: the wage supplement on Christmas Eve from 2 p. m. and on Christmas holidays is tax-free up to 150 percent and on New Year's Eve from 2 p. m. up to 125 percent of the basic wage of a maximum of 50 euros per hour.
Even though the distribution of holidays is generally not at the employer's discretion, he or she may order company holidays. In doing so, he should pay attention to two things: Firstly, the compulsory break should be during the school holidays so that parents are not disadvantaged and secondly, he should announce the imposed time off as early as possible so that all employees can prepare for it. However, if the company has a staff council or works council, the boss may not decide on his or her own, but must obtain its consent.
Visiting family while working from home?
Being able to work from home does not necessarily mean that employees can work from anywhere. So if you want to move your home office over the holidays, for example to celebrate with your family, you should discuss this with your boss. On the other hand, those who work on a mobile basis and have made a corresponding arrangement with their company can work completely independently of location, as in this case the company only provides the technology needed for the work.
What about mini-jobbers ?
Like all other employees in Germany, “mini-jobbers” (people in marginal employment) usually have public holidays off. Their wages also continue to be paid in the form of so-called holiday pay, just like normal employees. However, according to the ARAG experts, in practice it is often quite different. Some employers demand that 520-euro jobholders, who only work a few hours a month anyway, make up for the working time lost due to public holidays. The ARAG experts advise taking a look at the employment contract or the duty roster: If mini-jobbers would otherwise be obliged to work on the weekdays on which the Christmas holidays fall, they do not have to show up for work on December 25, nor 26.