An employee's release from work can be based on many reasons.

Contractual agreement:

It may be due to the fact that the employer has reserved the right in the employment contract to release the employee from work after the notice of termination has been given for the duration of the notice period.

Termination Agreement / Termination Agreement:

An exemption can also be agreed as part of a termination agreement or a court settlement.

If there is a right to exemption:

The employee has no right to leave for the period of notice. If he therefore stays away from work without an excuse, he not only loses his remuneration claims, but above all he risks an extraordinary dismissal from the employer according to § 626 Para. 1 BGB. The employer can demand that the employee be employed until the end of the employment relationship. He can also enforce this claim by means of an injunction pursuant to § 935 ff. ZPO.

Effects of the exemption:

In the case of a leave of absence, the employee is released from his duty to work without losing his entitlement to salary payments, vacation pay and time off in lieu, etc. If the employer wants to achieve that any holiday entitlements or entitlements to time off in lieu due to overtime or extra work are compensated, the employee must be expressly and irrevocably released from the obligation to work. Otherwise, the employee can assert his holiday entitlement or holiday compensation entitlement after the release.

Part-time job during the leave of absence:

If the employee earns a wage elsewhere during the leave, he does not have to have this earnings offset against the remuneration owed during the leave, according to the Federal Labor Court. In a termination agreement, for example, or in a unilateral leave of absence, the employer should point out that income earned elsewhere must be offset against the remuneration during the leave of absence.

Crediting is also out of the question if the employer already pays in advance for the duration of the leave of absence, releases them from work and a comprehensive settlement clause has been agreed.

Salary increase during leave:

The employee is entitled to a higher wage if a salary increase occurred during the leave of absence.

Time off and holiday entitlement:

If the employee is released from work revocably or if no release takes place with the remaining vacation entitlements being taken into account, the employee must be granted vacation leave at his request during the release, as long as there are no urgent operational concerns or vacation requests from other employees with social priority, cf. § 7 paragraph 1 sentence 1 BUrlG. This can make sense, since the employee has to reckon with the fact that the employer could reinstate him at any time during a revocable leave of absence. The revocable time off is therefore not to be designed freely like vacation time without fear of being used at any time. The employee may not take leave himself. An unauthorized start of vacation can lead to an extraordinary termination of the employment relationship for the employee.

Insofar as vacation can no longer be granted due to the termination of the employment relationship, it must be compensated in accordance with § 7 Para. 4 BUrlG.

If you have any questions about the subject of exemption, please contact our law firm and arrange one meeting

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