The reference time of retirement because of disability does not prevent the emergence of leave. Therefore, there arises year after year, the statutory minimum holiday entitlement and the statutory additional leave for severely disabled people. The leave entitlement can not be forfeited at the end of the transmission period of § 7 para 3 BUrlG. The three-year limitation period begins not arise in each leave year, but only after termination of employment.
The facts:
The severely disabled claimant was employed in public service. Since 2004, he was unable to work sick. From November 2004 he was retroactively initially until 31.07.2009 granted a full pension for reduced earning capacity. He subsequently received a life pension and retired at the end of 31.03.2009 from the employment relationship.
adopted in the present case the plaintiff to his former employer on settlement of his leave for the years 2005 until his retirement in 2009 to complete. Specifically, he demanded payment for the non-statutory holiday in that time taken for the additional leave for the disabled and to some extent for the collective agreement holiday. The Labour Court dismissed the action, the LAG gave her place predominantly, however, was the revision to.
The reasons: The claimant was
for the period at issue, both the statutory holiday and the additional leave is too severely disabled. Only the claimed for 2009, was not above the law beyond additional tariff holiday. The results from § 26, para 2c TVöD, after which the duration of the tariff in the rest leave employment for each full calendar month less one-twelfth.
The right to statutory leave and additional leave has been created. Currently, the law does not provide that the annual leave will be reduced for the time of receiving a temporary disability pension can. As long as a corresponding control is absent, it remains with the unabridged right to leave.
In case of dispute the holiday entitlement is not forfeited. If the holiday - as here - just because of the temporary full disability can not be taken, the claim is not forfeited to 31.3. of the subsequent year. The claims of the plaintiff are not barred in whole or in part. The course of the three-year limitation period begins not in the particular leave year, resulting in the claims, but only after termination of employment.
This result may be quite politically suspect. These concerns can not resolve the case, so far is Rather, the legislature asked.
(LAG Schleswig-Holstein Judgement of 12/16/2010, 4 Sa 209/10)
The background: The LAG
Schleswig-Holstein has with the ruling on the current position in the labor courts highly contentious issue for the first time and refer to action for legislators. It has approved the revision to the BAG. There were already several parallelism of lawsuits from other state labor jurisdictions with different results and reasoning are pending.
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