Subsequent expiry of vacation entitlement if not taken due to prohibition of employment under the Maternity Protection Act or parental leave

Hamm Regional Labor Court, September 11, 2025 – 13 SLa 316/25

The Hamm Regional Labor Court (LAG) has ruled that vacation entitlements that cannot be taken in the actual vacation year due to a prohibition of employment under the Maternity Protection Act (MuSchG) or due to parental leave are carried over to the next vacation year. However, this is not merely an extension of the carry-over period of the old vacation year.

Background

After the employee returned from parental leave in December 2024, the two parties disputed whether the plaintiff was still entitled to 13 days of additional leave under the collective agreement from 2021 and 2022.

The plaintiff was employed by the defendant five days a week as a sales assistant. The employment relationship was governed by the collective agreement (MTV) concluded between the North Rhine-Westphalia Trade Association and ver.di. According to the MTV, vacation must be granted and taken in the current calendar year if possible. In the event of a transfer, the vacation must be taken and granted in the first four months of the following calendar year. Otherwise, the portion of the vacation entitlement covered by the collective agreement expires.

From October 2021, the plaintiff was subject to a ban on employment without having already taken all her vacation days for the 2021 vacation year. The ban on employment was followed seamlessly by maternity leave and parental leave.

Decision

The Hamm Regional Labor Court is of the opinion that the plaintiff is also entitled to the 13 days of additional vacation entitlement under the collective agreement after her return from parental leave in December 2024. This entitlement will only expire on December 31, 2025.

Although, according to Section 7 (3) sentence 1 of the Federal Leave Act (BUrlG), leave must generally be granted and taken in the current calendar year, Section 24 sentence 2 MuSchG and Section 17 (2) BEEG [German Parental Leave Law] apply as special provisions. According to the court, possible provisions in the MTV were therefore also irrelevant.

The two special provisions mentioned above contain an exception to the principle that recreational leave must be granted and taken in the current calendar year. However, this is not merely an extension of the three-month carry-over period under Section 7 (2) BEEG. Rather, it constitutes an actual carry-over to the next calendar year or leave year. Only when this vacation year has expired – in this case, the year 2025 – can the vacation entitlement at issue here expire. This also applies to the additional vacation entitlement under the collective agreement. Here, too, the above-mentioned special provisions of the MuSchG and BEEG take precedence.

Summary

The above decision must be taken into account when planning leave and balancing leave entitlements. This means that even after several years of parental leave, "old" leave entitlements may become relevant again.