The employee was terminated without notice on September 18, 2017 and alternatively as of November 30, 2017. In the letter of termination, the employer stated, "In the event that the immediate termination cannot be assumed to be ineffective, I have given you an alternative notice. In this case, the following applies: You will use all your unused vacation immediately after the date of receipt of this notice of termination from 09/19/2017 to 10/11/2017. The compensation paid is then to be understood as payment of the vacation pay for the relevant period. In any case, I promise you the vacation pay for the time of your vacation without reservation."

In the unfair dismissal lawsuit, the parties reached a settlement according to which the employment relationship was to end on October 31, 2017.

It was not clarified whether the employer was allowed to oblige the employee to take vacation in the letter of termination. The employee considered this "precautionary granting of leave" to be inadmissible and argued: After all, leave is for rest and leisure. However, he was obliged to report to the employment agency as a job seeker and unemployed because of the prior notice of termination without notice. Because of his obligation to cooperate, he had to react to placement offers, so that a carefree vacation was not possible under these circumstances. The holiday grant is therefore ineffective. For this reason, he is still entitled to vacation pay of €1,338.88.

The employer took the view that all claims were balanced with the labor court settlement. As a precautionary measure, he was also allowed to order vacation until the end of the ordinary notice period in the event of an ineffective termination without notice. He continued to pay wages for these vacation days.

A notice: To § 1 Federal Holidays Act (BUrlG) every employee is entitled to paid vacation leave in each calendar year. In order to fulfill this entitlement, it is not sufficient that the employee does not have to work during the holiday period. The law requires that time off work must be “paid”.

A notice: A lawsuit against unfair dismissal is pending § 4 KSchG within three weeks of receipt of the written notice of termination. Otherwise, the termination shall be deemed effective § 7 KSchG.

The LArbG has determined that for this reason the employer must pay the holiday allowance or at least promise it unconditionally before the start of the holiday. In the case decided, the employer had therefore effectively ordered the plaintiff to take vacation. The employee was granted vacation pay. Thus, he was not unreasonably restricted in his holiday planning. Obligations to cooperate with the employment agency also exist in the case of "normal" ordinary terminations. Here, too, employees would have to make themselves available to the authority for mediation efforts until the end of the notice period. This applies even if you are still on vacation during this time. For this reason, the plaintiff was able to recover sufficiently during this time. The employer had already fulfilled the employee's claim to remuneration by paying the vacation pay.

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