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Practical tip - Irrevocable leave of absence in a non-terminated employment relationship
Irrevocable leaves of absence in a non-terminated employment relationship should be carefully considered. In any case, such a leave of absence should always be limited in time so as not to be exposed to unpleasant discussions. Once an irrevocable leave of absence has been granted, it is irrevocable. This issue is of practical relevance above all because declarations of exemption are legally effective without any form.
For example, the Düsseldorf Higher Labour Court (LAG Düsseldorf) recently had to rule again on whether an employee in an employment relationship that has not been terminated remains irrevocably released from work until he or she enters regular retirement with continued payment of remuneration (LAG Düsseldorf, 28 February 2023 - 8 Sa 594/22, so far only available as a press release). Since the parties still reached a settlement in time, the court did not have to make a decision. Due to the circumstances of the individual case, the LAG would probably have decided in favour of the employer.
Nevertheless, such a lengthy and cost-intensive procedure can be avoided by: (i) setting a time limit for irrevocable leaves of absence; (ii) only granting revocable leaves of absence (even if holiday entitlements cannot be taken into account); (iii) having clear rules, in particular who within the organisation is entitled to grant a leave of absence.