Holiday entitlement despite pregnancy and employment ban

BAG: You have not yet received a holiday with a holiday permit

(Jur). If a female employee can not start her approved leave because of her pregnancy and a consequent prohibition of employment, a claim to vacation compensation is possible. Because even if the employer has already granted the leave, this can not go out during a maternity protection employment prohibition, the Federal Labor Court (BAG) in Erfurt in a recently published judgment of 9 August 2016 clear (Ref .: 9 AZR 575/15).

This was a woman right, who was employed as a so-called operator in the blood donation area. Her duties included the removal of human blood. In early 2013, she was granted a total of 17 leave days in the months of July, August and October.

But in June 2013, the work was over. Because when the woman had learned that she was pregnant, a ban on employment was pronounced. She works with infectious material; employment is therefore not possible to protect the expectant mother and the unborn child. An alternative, risk-free job offered the operator of the operator not.

Later, when the employment ended, the woman demanded the settlement of her leave not taken, a total of 1,400 euros.

The employer refused. The employees have received the holiday but with his permission, so that he no longer has to pay this. In addition, the woman had anyway released anyway because of the prohibition of employment and could recover.

However, the BAG saw this differently. In order for the holiday entitlement to be fulfilled, an exemption statement from the employer is required. These have been present here. "A declaration of exemption of the employer can (...) the extinction of the leave entitlement (but) only effect, as far as for the exemption period a duty of the employee to work", judged the Erfurt judges.

For the applicant, however, because of the maternity protection employment prohibition no work obligation existed. A replacement activity, the employer did not assign the woman. If a general prohibition of employment in a fixed holiday period, the employer must also bear the "risk of default".

It is irrelevant that the applicant could have recovered during the general prohibition of employment as well as during a holiday. According to the Maternity Protection Act, female workers could "take full advantage of the holiday not received before the prohibition of employment", emphasized the BAG. If this is not possible because of the end of employment, the employee is entitled to payment for the leave not taken. fle / mwo / fle