Obligations of the Employer to Cooperate in the Realisation of Additional Leave Entitlements of Severely Disabled Persons

Severely disabled persons are entitled to five additional working days of paid leave pursuant to section 208 (1) sentence 1 SGB IX. This holiday entitlement arises irrespective of the employer's knowledge of the employee's severe disability.

Since additional leave is also subject to the time limit regime of section 7 (3) BUrlG, employers must also - if necessary formally - request their employees to take it clearly, in good time and with reference to the expiry of the leave at the end of the leave year or carry-over period.

In its ruling of 30th November 2021 (9 AZR 143/21), the Federal Labour Court (Bundesarbeitsgericht - BAG) has now clarified the conditions under which an exception to the employer's obligation to cooperate exists.

The Facts

Since 22nd August 2016, an employment relationship existed between the plaintiff and the defendant. With a degree of disability of 50 %, the plaintiff belonged to the group of severely disabled persons. However, he did not inform the defendant of this. During the employment relationship, the defendant did not ask the plaintiff to take leave, nor did inform him that leave not applied for could expire at the end of the calendar year or carry-over period. By letter of 3rd January 2019, the plaintiff terminated the existing employment relationship with effect from 15th February 2019 and unsuccessfully requested the defendant in another letter to grant him twelve working days of additional leave pursuant to section 208 (1) sentence 1 SGB IX for the period from 2016 to 2018.

The defendant refused to grant the additional leave and argued that the plaintiff's additional leave had already expired. It was also not obliged to ask the plaintiff to take the additional leave, as the plaintiff had concealed the fact that he belonged to the group of severely disabled persons.

The Decision

In the above-mentioned decision, the BAG made it unmistakably clear that it is impossible for employers to comply with the required obligation to cooperate if they have no knowledge of the employee's severe disability and this is also not obvious. In this case, the entitlement to additional leave is forfeited even if the employer has not complied with the obligation to inform and request.

In this context, the BAG also stated that abstract requests and references to holiday entitlement could not meet the requirements of transparent information. In addition, employers are generally not induced to point out any additional leave as a precautionary measure and to ask the employee to take it if necessary.

In the opinion of the BAG, employers do not have to inquire with employees about any severe disability they may have, despite a corresponding right to ask questions. In this respect, it could be expected that the employee would be informed of his or her severe disability if he or she intended to take the additional leave. If the employee does not disclose the severely disabled status, the entitlement to additional leave pursuant to section 7 (3) BUrlG is forfeited even if the employer does not comply with its obligations to request and inform the employee, since in this case the employer would not be reproachable preventing the employee from asserting his or her rights.

The Practice

The present decision of the BAG creates a balance between employee and employer interests with regard to additional leave within the meaning of section 208 (1) sentence 1 SGB IX (until 31st December 2017, section 125 (1) sentence 1 SGB IX old version). The decision balances the fact that the additional leave entitlement arises without employer-side knowledge of the employee's severe disability and ensures that employees cannot accumulate unlimited additional leave within the meaning of section 208 (1) sentence 1 SGB IX due to employer-side lack of knowledge of the severe disability.

In order to prevent legal disputes about the employer's knowledge or lack of knowledge of the employee's severe disability and thus also about the forfeiture of the additional leave entitlement, it is recommended, however, that employers make use of their right to ask about the employee's severe disability after the expiry of the six-month period based on section 173 (1) no. 1 SGB IX, since according to the general burden of proof, it is up to the employer to prove that it is impossible to fulfil his or her obligation to request and inform.