Overview: The BAG ruling — vacation must be counted by workdays, not calendar days
On 19 August 2025 the Federal Labour Court (Bundesarbeitsgericht, BAG) clarified a decisive point: statutory vacation entitlement and its fulfilment must be calculated only by workdays, not by calendar days. This means employers may not deduct leave for calendar days on which the employee would not have been required to work. The decision reinforces the protective purpose of the Federal Vacation Act (Bundesurlaubsgesetz, BUrlG) and affects full‑time, part‑time, shift and mini‑job workers alike.
What changed in practice?
Before this ruling some employers routinely deducted “calendar day” blocks — for example two full calendar weeks — from a worker’s leave balance, regardless of which weekdays the employee actually worked. The BAG ruled that those deductions are unlawful. Vacation days may only be debited for the specific days on which an employee would have been obliged to work.
- Ruling date: 19 August 2025 (BAG).
- Core rule: Count only workdays when granting or deducting vacation.
- Legal basis: Interpretation of the BUrlG and established EU case law protecting leave.
Legal background and rationale
The decision builds on the structure of the BUrlG: the statute measures minimum leave in Werktage (workdays). Historically the law sets a minimum of 24 Werktage based on a six‑day workweek; in modern five‑day models this is regularly translated into a minimum of 20 workday leave. The BAG emphasised that both the calculation of entitlement and the accounting of consumed vacation must follow the same workday logic, because the legal purpose of vacation is rest from work obligations, not from calendar time.
Connection to EU case law
The BAG decision aligns with European Court of Justice (EuGH) rulings that strengthen protection of annual leave: for example, leave cannot automatically expire if the employer failed to inform and encourage the worker to take it; unused leave can in some cases be transmitted to heirs; and employers have information obligations. The common thread is that vacation is a mandatory, employee‑protective right that must not be weakened by internal administrative practices.
Key practical implications for employers
Employers who previously recorded and deducted vacation in calendar days must review and change their leave administration. HR policies, collective agreements, templates and HR/payroll software must be updated so that leave consumption is counted only on days the employee would normally have worked.
- Audit current vacation rules, templates and software logic for calendar‑day deductions.
- Adjust leave policies so deductions only occur on contractual workdays.
- Train HR staff and managers to count workdays (including for part‑time and shift patterns).
- Communicate changes clearly to employees and update employee handbooks.
- Assess historic cases where calendar‑day deductions were used and consider remediation where employees were disadvantaged.
| Work pattern | Statutory minimum (workdays per year) | Example calculation |
|---|---|---|
| 5‑day week (full time) | 20 workdays | Full statutory minimum = 20 workdays |
| 4 working days/week | 4/5 of 20 = 16 workdays | Employee works Mon–Thu → 16 workdays minimum |
| 3 working days/week | 3/5 of 20 = 12 workdays | Employee works Tue, Thu, Fri → 12 workdays minimum |
| Note: Collective agreements or contracts can provide more days, but accounting must still follow workdays. | ||
Actions employers should take
What this means for employees
Employees who work part‑time, irregular shifts or only a few days a week should check how their employer has recorded past and future leave. If calendar‑day deductions were used, affected employees may have been charged more vacation days than entitled and could have a claim for correction or reimbursement, depending on statute of limitations and case specifics.
- Review past leave records and contracts to see if calendar days were deducted.
- Ask HR for an explanation of how holiday days were counted.
- If you suspect over‑deduction, request a recalculation based on your actual workdays.
- If needed, seek legal advice or use internal grievance procedures to resolve disputes.
Steps employees can take
Concrete examples and calculations
Below are simple scenarios showing the difference between incorrect calendar‑day deductions and correct workday‑based deductions. These examples use the statutory minimum conversion to a five‑day model (20 workdays) for clarity.
Example A — Part‑time employee (3 fixed days per week)
Situation: An employee works every Tuesday, Thursday and Friday. Employer previously granted “one week” of calendar vacation (Mon–Sun) and deducted 7 days from the leave account. Correct method: Determine annual entitlement by workdays: 3/5 × 20 = 12 workdays per year. If the employee takes the calendar week Mon–Sun, only the three days the employee normally works in that week (Tue, Thu, Fri) should be deducted — i.e. 3 vacation days, not 7.
Example B — Shift worker with irregular patterns
Situation: A night worker has shifts that sometimes cross midnight. Courts treat vacation in terms of work obligations: if a shift spans two calendar days but is contractually one working day, the relevant question is how the workday is defined in the contract and scheduling. The BAG has previously recognised that a long shift crossing calendar boundaries may count as two workdays if the contractual or rostered obligation covers both, so employers must examine the actual contractual duties and rosters.
Example C — Full‑time employee taking two calendar weeks
Situation: A full‑time worker normally works Monday to Friday and requests two calendar weeks (14 calendar days). Correct method: Count only Monday–Friday workdays in those weeks. Two full working weeks will amount to 10 vacation days, not 14 calendar days.
Frequently asked questions (FAQ)
Here are answers to questions commonly raised about the ruling and how it affects leave calculation and administration.
Can employers keep using calendar‑day rules by agreement?
No. Where calendar‑day deductions reduce the protective core of statutory or contractual leave, they will be considered unlawful. Agreements or practices cannot undermine the statutory concept that vacation equals rest from work obligations. Any contractual wording must be interpreted consistently with the BUrlG and the BAG decision.
Do employees have claims for past over‑deductions?
Possibly. If an employer systematically deducted calendar days and that led to measurable disadvantage, employees may ask for recalculation and restitution. Whether a claim succeeds depends on the individual facts and time limits. Employees should document their case and may want legal advice.
Does the statutory minimum change?
No. The statutory minimum under the BUrlG remains as before (24 Werktage based on a six‑day week, commonly understood as 20 workdays for a five‑day week). What changed is how leave is counted when it is taken: accounting must follow the actual working days.
Conclusion and recommended next steps
The BAG decision is a clear signal: vacation is tied to the obligation to work and must be measured and debited in workdays, not in calendar days. Employers should review policies, update HR systems, retrain staff, and check past calculations for potential overcharging. Employees should verify how their leave was recorded and request corrections if necessary. Taking these steps will help ensure compliance with the Bundesurlaubsgesetz and the protective legal framework that governs annual leave.
Quick checklist
- Review templates and employment contracts for calendar‑day language and revise where necessary.
- Configure HR and payroll systems to debit only contractual workdays.
- Communicate changes to staff and provide examples for common work patterns.
- Run an audit of past leave bookings where calendar days were used and evaluate potential remedies.
- Document decisions and maintain transparent records to meet employer information obligations.
