Germany: Strike Instead of Vacation: No Vacation Pay while Participating in a Strike

German labour law generally treats vacation rights and the right to strike as separate areas of regulation. While employees are exempt from their duty to work during their paid vacation and are entitled to vacation pay, participation in a lawful strike result in the suspension of the primary obligations of both parties under the employment relationship. In practice, this raises the question of what legal consequences arise when both situations coincide. The Saxony Regional Labour Court has provided an important clarification on this matter.

In the court’s view, participation in a lawful strike supersedes previously approved vacation time. In this scenario, employees must decide whether to actually use their vacation time for rest and relaxation or to participate in the labour dispute. According to the ruling, it is not possible to simultaneously avail oneself of the benefits of both legal frameworks.

 

Background

The case involved an employee whose vacation for a period in November 2023 had already been approved. However, before his vacation began, he took part in a lawful strike that lasted several months and also covered the approved vacation period. During this time, the employee actively participated in the strike and received strike pay from his union. Consequently, the employer did not pay the employee any vacation compensation.

The employee sued for vacation pay and, alternatively, claimed that the vacation days in question be granted retroactively. The Saxony Regional Labour Court dismissed both claims. In the court’s view, approved leave can only result in the fulfillment of the vacation entitlement if the employee is obligated to perform work during the relevant period. During a lawful strike, however, the primary obligations of the employment relationship are suspended. Participation in the strike therefore supersedes the effect of the previously granted leave.

 

Key Issues

The court’s ruling on vacation pay is of particular significance. Since the relevant period was legally classified as a strike period, there was no entitlement to compensation from the employer. In the opinion of the Regional Labour Court, employees cannot simultaneously receive strike pay and claim vacation pay for the same period. Such “double benefit” would contradict the principles of labour dispute law.

Furthermore, the court clarified that the question of vacation forfeiture must be assessed independently of participation in the strike. Vacation days are not automatically retained but are subject to the general provisions of the German Federal Vacation Act (Bundesurlaubsgesetz – BUrlG). In this specific case, the vacation days had lapsed in the meantime upon the expiration of the statutory carryover period. There were no additional duties on the part of the employer to provide notice or cooperate, as the vacation had already been requested and approved. The decision thus establishes, for the first time, a clear distinction between the consequences of strike participation for vacation pay and the general rules regarding the retention and forfeiture of vacation entitlements.

Practical Point

• Employers are generally not required to pay vacation pay if employees participate in a lawful strike during a vacation that has already been approved.
• The decision strengthens the position of employers in labour disputes and precludes the simultaneous receipt of both strike pay and vacation pay.
• Companies should carefully document participation in strikes during approved vacation periods in order to be able to assess subsequent compensation claims with legal certainty.
• The question of whether vacation days remain valid must be examined separately from the entitlement to vacation pay and is governed exclusively by the provisions of the German Federal Vacation Act.
• Since an appeal is pending before the Federal Labour Court, it remains to be seen whether the decision of the Saxony Regional Labour Court will be upheld.