No General Prohibition on Employer Contact During an Employee’s Annual Leave

Federal Labour Court, Judgment of 4 December 2025 – Case No. 2 AZR 55/25

In its judgment of 4 December 2025 (Case No. 2 AZR 55/25), the Federal Labour Court held that an extraordinary termination is ineffective if the employer fails to comply with the two-week deadline under Section 626 (2) of the German Civil Code (BGB) by remaining inactive during the employee’s annual leave and making no attempt to contact the employee for a hearing. According to the Court, neither the Federal Leave Act (Bundesurlaubsgesetz) nor EU law establishes a general prohibition on contacting an employee during annual leave. Rather, the employer is obliged to make at least one attempt at contact – for example by telephone, email or post – provided no special circumstances preclude this.

A. Facts of the Case

The claimant had been employed by the defendant since 2006, most recently as a train manager and specialist trainer for apprentices. The parties mutually agreed that the employment relationship could no longer be terminated by ordinary notice due to a collective bargaining agreement provision incorporated into the contract. The defendant had provided the claimant with a company mobile phone, although he was not required to be reachable on it during rest periods or annual leave.

On 24 April 2023, the claimant was on duty as a train manager together with another train attendant. On 27 April 2023, the other train attendant alleged to the defendant that the claimant had sexually harassed him during the journey. The claimant had already been on rest time since 25 April 2023 through 1 May 2023 and was on approved annual leave immediately thereafter until 21 May 2023.

The defendant waited for the claimant’s return from leave and only confronted him by letter dated 22 May 2023 with the allegation of sexual harassment and the possibility of termination, inviting him to a staff meeting on the following day, 23 May 2023. At the staff meeting on 23 May 2023, the claimant stated that he wished to respond to the allegations only in writing. At the claimant’s request, the defendant extended the deadline for his response until 30 May 2023. By letter of that date, the claimant rejected the allegations.

By letter dated 2 June 2023, the defendant consulted the works council regarding the intended extraordinary termination without notice as well as an alternative extraordinary termination with a notice period. The works council dealt conclusively with the consultation at its meeting on 5 June 2023, whereupon the defendant terminated the employment relationship by letter dated 6 June 2023, which was received by the claimant on the same day.

The claimant filed an unfair dismissal claim against both terminations before the Labour Court of Karlsruhe, arguing that the two-week deadline under Section 626 (2) BGB had not been observed, that the works council had not been properly consulted, and denying the allegation of sexual harassment.
The defendant took the view that the terminations it had issued were valid. In particular, it argued that the deadline for declaring termination under Section 626 (2) BGB had been observed, since contacting the claimant during his annual leave would have been contrary to the recuperative purpose of the leave, and therefore the defendant had not been obliged to hear the claimant during his leave.

The Labour Court of Karlsruhe (Judgment of 29 February 2024 – Case No. 1 Ca 147/23) upheld the claim in its entirety. The defendant’s subsequent appeal was dismissed by the Higher Labour Court of Baden-Württemberg (Judgment of 12 December 2024 – Case No. 12 Sa 25/24).

B. Reasoning of the Federal Labour Court

The Federal Labour Court also dismissed the defendant’s appeal on points of law (Revision).

1. Failure to Comply with the Termination Declaration Deadline Under Section 626 (2) BGB

The Federal Labour Court confirmed the lower courts’ view that the extraordinary terminations were ineffective due to non-compliance with the termination declaration deadline under Section 626 (2) BGB. Under Section 626 (2) sentence 1 BGB, an extraordinary termination may only be issued within two weeks. The deadline begins to run as soon as the person authorised to terminate has reliable and sufficiently complete knowledge of the relevant facts justifying termination, enabling that person to decide whether or not to continue the employment relationship.

While the employer may, at its reasonable discretion, carry out further investigations and hear the affected employee without the deadline beginning to run, this applies only as long as the employer conducts investigations with due diligence for justifiable reasons (Federal Labour Court, 27 February 2020 – Case No. 2 AZR 570/19, NZA 2020, 1405, para. 30). If the party subject to the potential termination is to be heard, this must take place within a short period, which as a general rule may not exceed one week and may only be exceeded in the presence of special circumstances.

2. Contact During Annual Leave

In a further development of its case law, the Federal Labour Court clarified that even in cases of leave-related absence, mere inactivity on the part of the employer is generally insufficient to prevent the commencement of the termination declaration deadline under Section 626 (2) BGB. In particular, it cannot be assumed that the employer is prohibited from approaching the employee solely because leave has been granted, in order to ascertain whether the employee is willing to participate in clarifying the facts.

In cases of leave-related absence, the conflicting obligations and interests must be considered. While the need to safeguard the recuperative purpose of leave may restrict the employer’s ability to make contact, it does not entirely preclude it. Conversely, the underlying rationale of Section 626 (2) BGB requires the swiftest possible clarification of allegations and an early hearing of the affected employee.

The Federal Labour Court emphasised that neither the Federal Leave Act, nor the Working Time Directive (Directive 2003/88/EC), nor Article 31 (2) of the Charter of Fundamental Rights of the European Union provide for an absolute prohibition on contact during annual leave. The Federal Leave Act contains neither an express provision on the permissibility of contact during leave nor does a prohibition arise by way of interpretation. The employer’s contact for the purpose of a hearing does not constitute a demand for the employee to perform the principal contractual obligation. Even if the employee decides to respond to the allegations, this merely constitutes compliance with an obligation incumbent upon the employee or at most a secondary obligation within the meaning of Section 241 (2) BGB. EU law likewise does not yet recognise a right of the employee to be unreachable during leave.

The decisive factor, according to the Federal Labour Court, is the anticipated actual duration of the employee’s absence. The defendant’s argument that, unlike in cases of illness, the employer can reliably predict the employee’s return in the case of leave, was not persuasive. The employee’s interest in having no contact with the employer during annual leave must yield to the imperative of legal certainty. Ultimately, it is left to the employee’s own decision whether and how to respond to such a contact attempt by the employer. If the employer is unable to reach the employee, or if the employee declines to comment by reference to the leave, special circumstances regularly exist that preclude a hearing during leave.

3. Application to the Specific Case

In the specific case, the defendant became aware of the allegations against the claimant on 27 April 2023. However, the termination letters were not received by the claimant until 6 June 2023, i.e. after the deadline under Section 626 (2) BGB had already expired. In the intervening period, the defendant had not pursued the investigation it considered necessary with the required diligence and, in particular, had not attempted to contact the claimant within an appropriate timeframe. According to the findings of the Higher Labour Court, communication with the claimant via the company mobile phone would generally have been possible during the leave. Alternatively, an attempt at contact by post to the claimant’s private address could also have been considered. The defendant had not demonstrated any special circumstances that would have made an attempt at contact during the leave appear futile.

4. No Conversion into an Ordinary Termination

In the Federal Labour Court’s view, a conversion of the time-barred extraordinary terminations into an ordinary termination was not possible. According to the findings of the Higher Labour Court, the works council had only been consulted regarding the extraordinary terminations. Since the defendant itself had not claimed to have received the works council’s unconditional consent, conversion into an ordinary termination was already excluded on this ground.

C. Practical Implications

The Federal Labour Court’s judgment contains important clarifications for the practice of extraordinary termination in cases of leave-related employee absence.

Employers cannot rely on the assumption that the two-week deadline under Section 626 (2) BGB is suspended during an employee’s leave if they simply remain inactive. An employee’s annual leave does not constitute a special circumstance that permits the employer to wait several weeks before making contact without further justification. Rather, the employer is required to make at least one attempt at contact – for example by telephone, email, messaging services or post – in order to hear the employee on the allegations. The employee, for their part, is not obliged to respond to such a contact attempt during their leave. If the employee declines to comment by reference to their leave or is unreachable, special circumstances regularly exist that suspend the running of the deadline.

For practitioners, the following recommended course of action arises: If the employer becomes aware of grounds for extraordinary termination during an employee’s leave, it should immediately and in a documented manner attempt to contact the employee – even during ongoing leave. From the employer’s perspective, it is advisable to use multiple channels of communication simultaneously (e.g. company mobile phone, private email address, postal delivery to the private address). Every contact attempt should be carefully documented in order to demonstrate, in the event of a dispute, that the hearing was pursued with the required diligence. Furthermore, the judgment makes clear that rigid time limits for the permissible waiting period do not apply. A shorter leave absence may, under certain circumstances, be waited out, but in the case of a longer absence, an attempt at contact within an appropriate timeframe is mandatory. Finally, employers should, as a precautionary measure, always consult the works council regarding an alternative ordinary termination as well, in order to preserve the possibility of conversion should the extraordinary termination fail for formal reasons.