Holiday success not necessary

An officially ordered quarantine does not prevent the consumption of holiday leave

From our Labour Law department

In its decision of 08.06.2021 – 6 Ca 6035/21, the ArbG Bremen-Bremerhaven (Bremen-Bremerhaven Labour Court) ruled that an officially ordered quarantine does not prevent the consumption of holiday leave.

In the case at hand, an employer approved his employee’s application for holiday leave from 28.12.2020 to 31.12.2020 on 04.11.2020. Subsequently, the Bremen Health Authority ordered a quarantine for the period from 21.12.2020 to 04.01.2021. As the employee was unable to organise his leave according to his wishes, he brought an action before the ArbG Bremen-Bremerhaven for credit for the days of leave that fell within this period.

According to the plaintiff, section 9 of the BUrlG also applied accordingly in the case of an officially ordered quarantine. The widely known provision of section 9 of the Federal Holidays Act (BUrlG) stipulates that illness during holidays does not count towards annual holidays. The plaintiff argued that a quarantine was comparable to an illness, at least in terms of holiday law. Moreover, the legislator had simply not considered the inclusion of quarantine by the authorities in the BUrlG.

The Bremen-Bremerhaven Labour Court clearly rejected this legal opinion. It thus follows the case law of the Halle (Saale) Labour Court (judgment of 23 June 2021 – 4 Ca 285/21) and the Bonn Labour Court (judgment of 7 July 2021 – 2 Ca 504/21). A case law deviating from this is therefore no longer to be expected.

The Bremen-Bremerhaven Labour Court correctly states that the entitlement to paid annual leave exclusively concerns the release from work and the payment of holiday pay. However, the employer did not owe the employee any “holiday success” beyond this. The employer had done all that was necessary by fixing the holiday period and unconditionally promising the holiday pay. All “events interfering with leave” occurring thereafter were in principle within the sphere of risk of the individual employee.

The legislator had explicitly provided for non-crediting of leave in cases of illness or spa or curative treatment (section 10 BUrlG). The case law of the labour courts has fundamentally rejected an extension of these exceptions.

Incidentally, during the Corona pandemic, the legislature had been able on several occasions to take into account the case of an official quarantine order also under holiday law. This had not been done despite several amendments to the Infection Protection Act.

For this reason, § 9 of the BUrlG could not be applied accordingly.

This decision of the Bremen-Bremerhaven Labour Court is to be fully agreed with. An official quarantine is not to be equated with an illness without further ado. The lack of the possibility to leave one’s own home does not mean that no recreational value is guaranteed. As the court rightly points out, many conceivable ways of organising holidays can also be realised within one’s own four walls (e.g. reading, other “indoor” hobbies, watching television, etc.).

Finally, the interests involved must also be taken into account:

The employer cannot bear the risk and pay for the fact that the employee has to stay at home on holiday and cannot go on a trip. Rather, the “successful” use of leave is the risk of every employee. Especially against the current background that the leave can also coincidentally fall into the phase of an extensive lockdown, a deviating assessment would be neither appropriate nor legally tenable in the present case.

If you have any further questions on this topic, please do not hesitate to contact our experts in Labour Law.