There is no statutory holiday entitlement during unpaid special leave

For years there seemed to be only one direction in the jurisprudence of the European Court of Justice in vacation law. Employees won in rows, sometimes contrary to clear national legal regulations (but recognized as being contrary to European law). A current decision by the BAG from March 19, 2019 (ref.: 9 AZR 315/17) shows: There is another way. At least in the case of unpaid special leave, there is no statutory holiday entitlement.
The case concerned an employee who was granted special unpaid leave by her employer throughout 2014. After returning from her unpaid special leave, she immediately claimed that the statutory holiday entitlement had also accrued during this period. The employer is therefore obliged to grant her 20 days of vacation for 2014.
Difficult to understand, but against the background of the previous case law of the BAG, even promising. In its judgment of May 6, 2014 (case number: 9 AZR 678/12), the BAG decided that the agreement on unpaid special leave and the associated suspension of the mutual main obligations arising from the employment relationship did not fundamentally prevent the creation of statutory leave entitlements.
It is welcome that the Federal Labor Court no longer upheld this case law in the current decision of March 19, 2019. The BAG now states that in the case of unpaid special leave, when calculating the duration of the leave, it must be taken into account that the mutual main performance obligations in the employment relationship (duty to work and payment of remuneration) are temporarily suspended. This means that an employee who is on unpaid special leave for the entire calendar year is not entitled to statutory vacation leave due to the lack of an obligation to perform work. The employee's lawsuit was dismissed.
In practice, this also solves an important problem in connection with the design of models for granting unpaid special leave. Because the statutory minimum vacation entitlement is essential. It was therefore ultimately an obstacle to the granting of longer unpaid special leave that the employer had to expect that the employee would be the first to claim the statutory leave entitlement after it expired. This risk no longer exists.