Hello all,

I work for a medium-sized NGO in Berlin. I have 26 days of vacation and I have already used them all for 2023, meaning I have none left for ‘between the years’, December 27, 28, 29, 2023. This is no problem for me as I’m not religious and was planning to work remote on these days anyway.

The CEO of my organisation sent an email on 25 October about the holiday season and included the bullet point **”you will need to take 3 days holiday (27, 28 & 29 December)”.** In the past, the CEO has sometimes gifted the days ‘between the years’ as extra vacation days to the entire team. The decision largely rests on how the CEO is feeling that year, and generally, things are quite informal when it comes to tracking hours and days (but this is changing soon to comply with new EU laws).

As I don’t have three extra holiday days for the 27-29 December, I spoke to someone in admin as well as my manager who both implied that: formally, I will need to take these days from my 2024 holiday allowance; but informally, (lots of \*wink wink, nudge nudge\*) I can simply ask the CEO for these days and I will likely get them.

This situation makes me angry as I can sort of get three extra holiday days if I play the game right, but my colleagues who have the remaining holiday days are forced to use them when the CEO decides, rather than earlier in December or even rollover in 2024. I have done a quick google and [IamExpat’s page on the topic](https://www.iamexpat.de/career/employment-news/everything-you-need-know-about-taking-holiday-days-germany) includes the sentence, “your employer is generally not allowed to dictate the dates you must take your days off.”, but there is no law cited.

**I would like to know which law (if any) backs up this claim that employers cannot decide when you take vacation. Being able to cite a law would bolster my case when I approach the CEO about this.**

Thank you all in advance.

by beston54

13 comments

  1. There are some laws that it is allowed to order when to take your vacation under specific circumstances.

    Try to Research stuff to “betriebsferien/betriebsurlaub/betriebsruhe”

  2. Germany has a concept of Betriebsferien: https://de.wikipedia.org/wiki/Betriebsferien

    Basically they want to shut down the whole operation for those days, which will save money. It rather common around the country (for example my company shuts down between Christmas and New Year with just three/four people ready to be called in in cases of emergencies).

    Going from the wiki article, there is a decision by the federal labour court that Betriebsferien can make up 3/5 of the yearly vacation time.

  3. They can tell you to take a vacation on specific days, look into “Betriebsurlaub”. In general its regulated by the Bundesurlaubsgesetz (BurlG). These days need to be announced in time for employees to plan, since you were told too late it is a fair offer to give you these additional days off.

  4. There is something called „Betriebsferien“, when a business decides to close for a holiday. In this case you as a worker can be compelled to use vacation time for the closure. There are stipulations about how the Betriebsferien cannot be as long as your entire holiday allotment (like 20 days) and I think the max is like 3/4.

    So 3 days, 100% legal.

    What can also happen is that you can usually use overtime instead of vacation time to make up the difference.

    In your case, as your boss has „given“ the days off without use of vacation time in the past, this practice might constitute a „betriebliche Übung“, which is an informal (as in non-contractual) but regular practice by the company to the extent that you would expect that thing as a given. In that case you could sue.

  5. When the whole organization shuts down for a couple of days (or even two weeks) and everybody has to take their vacation at that time that’s called “Betriebsurlaub”. It’s perfectly legal and not uncommon at all, especially for the period “between the years” (as Germans call the week between Christmas and new years). So in principle your CEO is completely within their rights of doing this.

    However, there has to be a “sufficient” notice period for everybody to be able to plan accordingly. The law doesn’t define what counts as sufficient, but six months is quite common. If it was clear six months ago that the organization was shutting down for that period and you don’t have anything in writing that you wouldn’t need your vacation days for that time, your chances aren’t good and “goodwill of the CEO” is indeed your best bet. Sorry.

  6. Your employer can mandate employees to take holidays (Betriebsferien), but it’s a little complicated.

    Under § 7 Abs. 1 BUrlG, the employee’s wishes are to be considered, as long as it doesn’t go against “urgent” operational concerns. If your company has a Betriebsrat, they must agree to the mandated holiday. If the company doesn’t have a workers’ council, then the employer has the freedom to decide. There are a couple of rules regarding *when* exactly the employer announces the company holidays, e.g. six months is deemed to be sufficient time and already approved holiday cannot be taken away from the employees. Using holiday days from 2024 is not permissible if you have no days left.

    You can read more information here on Haufe: https://www.haufe.de/recht/arbeits-sozialrecht/betriebsferien-wann-kann-der-arbeitgeber-urlaub-anordnen_218_544384.html.

  7. [§ 7 BurIG](https://www.gesetze-im-internet.de/burlg/__7.html) says that, generally, the wishes of the employees have to be considered, unless urgent operational matters of the company or the vacation wishes of other employees collide with yours.

    However, the company is allowed to call in “Betriebsurlaub” or “Betriebsruhe” when they do it well in advance, and the Bundesgerichtshof decided that 4 – 5 days of the vacation days can be used by the employer for this purpose. The usual notice period seems to be around 6 months though, according to jurisprudence. ([Source](https://www.deurag.de/blog/betriebsferien/))

    So I would argue that your employer is technically correct that he’s allowed to dictate some vacation for his employees, but if he did notify you all just now it might be a little bit late.

  8. Code Word “Betriebsferien”.

    1, up to 3/5 of the yearly vacation can be mandated to be taken during certain events (i.e. between Christmas and New Year’s Eve). This has to be officially communicated.

    2. If it has not been communicated properly and you’ve taken all the days and are now days short your employer has to give these days as extra days. Again, only viable if not communicated properly about the “Betriebsferien” beforehand.

    3. The whole schtick is regulated in “Bundesurlaubsgesetz” and was further defined in several law suits, just google your question in the context of “Betriebsferien”.

  9. The important word is “generally”.

    Here is the relevant law [https://www.gesetze-im-internet.de/burlg/__7.html](https://www.gesetze-im-internet.de/burlg/__7.html). The wishes of the employee have to be heard, but there are reasons to deny or order it. For more details: [https://www.ihk-muenchen.de/de/Service/Recht-und-Steuern/Arbeitsrecht/Bestehende-Arbeitsverh%C3%A4ltnisse-K%C3%BCndigung-und-Sozialversicherung/Betriebsurlaub/](https://www.ihk-muenchen.de/de/Service/Recht-und-Steuern/Arbeitsrecht/Bestehende-Arbeitsverh%C3%A4ltnisse-K%C3%BCndigung-und-Sozialversicherung/Betriebsurlaub/)

  11. If the company closes for specific periods, then as an employee you have to take these days off. Between Christmas and new years is incredibly common for small and mid size companies to close.

  13. There is non!
    If he is not willing to „give you work“ for these days, it is his problem. He still have to pay you.

    We have the same discussion in our company.

    There is the opportunity for „Betriebsurlaub“. This must be announced 6 months in advance.

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