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Compensation of damages for forfeiting of additional leave by a severely disabled employee

In accordance with Section 241(2) German Civil Code, employers are obligated to notify severely disabled employees about their additional leave under Section 125 SGB IX Social Code old version. If employers fail to comply with their duties to provide information and notification, employees are entitled to compensation in the form of compensatory leave in accordance with Sections 280(1), (3), 283 Civil Code in conjunction with Section 249(1) Civil Code, which, under Section 251(1) Civil Code, is converted into a compensation claim upon termination of the employment relationship.

Lower Saxony Regional Labor Court, January 16, 2019 – 2 Sa 567/18 (nrkr)

In addition to the existence of the employment relationship, different payment claims were also in dispute between the parties.

The plaintiff had been employed by the defendant since 2012. The employment contract provided for a 6-month one-stage exclusion period. The plaintiff was severely disabled with a disability degree of 50%. During the employment relationship, the plaintiff did not assert her claim to additional leave to which severely disabled persons are entitled in accordance with Section 125 SGB IX old version. The defendant neither made a reference to the fact that the plaintiff would be entitled to this additional leave nor did it request the plaintiff to take such leave.

It was disputed between the parties since when exactly the plaintiff’s status had been known to the defendant. The defendant claimed that it had only been aware thereof since 2015.

The plaintiff filed for compensation of damages on account of the expiry of the additional leave from the years 2012-2016 due to the breach of fiduciary duties and duties of care.

The Labor Court dismissed the complaint to the extent that the defendant had not recognized leave compensation claims. With the appeal, the plaintiff pursued her claims further and also extended her complaint to leave compensation from 2017.

The State Labor Court amended the first-instance judgement and ordered the defendant to pay partial leave compensation and damages.

With respect to the leave compensation for 2017, which was only requested in the appeal proceedings, the court dismissed the plaintiff’s application on account of the expired preclusive period.

In the opinion of the State Labor Court, it could remain open in the case at issue whether Section 7(3) Federal Leave Act is to be interpreted in accordance with the Directive with regard to the expiry of the leave. In any event, the interpretation of Section 241(2) Civil Code in conformity with the Directive resulted in the employer’s obligation to request and inform the employee. If the employer violates this secondary obligation arising from the employment relationship, it is no longer relevant whether the employee has applied for leave or not, thus placing the employer in default.

If the resulting substitute leave for the employee can no longer be taken due to the termination of the employment relationship, it is to be compensated.

According to the State Labor Court, these principles are also applicable to additional leave for severely disabled persons in accordance with Section 125 SGB IX old version.

In the opinion of the State Labor Court, the defendant had violated the above-mentioned secondary obligation at the latest upon gaining knowledge of the plaintiff’s severe disability in 2015, since the defendant had neither pointed out to the plaintiff her claim to additional leave nor requested the plaintiff to take the additional leave.


The decision of Lower Saxony State Labor Court is consistently following the case law of the Court of Justice of the European Union on employers’ duty to provide information and notification in connection with annual leave entitlements to be granted.

In view of the above decision, employers are advised to clearly and transparently inform employees of all annual leave entitlements to which they are entitled and to actually provide them the opportunity to take their annual leave at the end of the year before the leave period threatens to expire. For evidentiary reasons, this should be done in writing. If employers meet these conditions, the forfeiture in accordance with Section 7(3) Federal Leave Act will continue to apply.


Bettina-Axenia Bugus-Fahrenhorst

Bettina-Axenia Bugus-Fahrenhorst


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