Exemption (labor law)

In labor law, exemption ( suspension ) refers to the unilateral order by the employer or a mutual agreement between the parties to the employment contract to permanently or temporarily release an employee from the obligation to perform his work .

Free of charge / free of charge

A leave of absence can be agreed as paid or unpaid leave

If the leave of absence takes place at the request of the employee , without the employee having a legal claim , it is usually unpaid.

A prerequisite for paid leave of absence is therefore a legal claim to exemption - see reasons for exemption below - in connection with an express provision in the underlying legal norm.

If the employer voluntarily releases the employee, this is usually done with continued payment of the salary. The employee does not need to work, but retains his or her wage entitlement during the leave period.

Revocability

An exemption may be revoked or irrevocably be explained.

In the case of revocable leave of absence, the employer can request the employee to resume work at any time.
With irrevocable leave of absence, the employee is no longer called back to work during the leave of absence phase.

Unilateral exemption

The employer is only entitled to unilateral exemption in rare cases, i. H. to an exemption without the consent of the employee. This applies even if the employer continues to pay the salary. The most frequent case is the exemption after a termination until the expiry of the notice period. If there is no other legal basis for an exemption (see below), an agreement on the exemption is usually made.

Retroactive exemption?

Because of the "fixed debt character" of the work within the meaning of § 275 BGB , the employee cannot be released from his duty to work retrospectively.

Time off and vacation

The employer grants vacation by releasing the employee from the obligation to work. In the case of exemptions for other reasons, the question often arises as to whether this is an independent exemption or just an exemption to meet the holiday entitlement, i.e. whether the exemption is offset against the (recreational) leave.

In the case of exemption taking into account the vacation, the remaining vacation entitlement is lost. The vacation entitlement is considered satisfied with the exemption. However, the employer must make it clear to the employee that he wants to grant vacation with the leave of absence.

If this is not taken into account, the employee retains his vacation entitlement and acquires additional vacation entitlement during the release phase. In the case of revocable leave of absence , crediting is generally inadmissible, since the meaning of the vacation leave would be thwarted, since the employee can expect to be brought back to work at any time and therefore cannot travel or make other plans. In the case of irrevocable exemption, this argument does not apply, so that, according to the widespread legal opinion, it can be explained taking into account the vacation entitlement.

Crediting of interim earnings

Finally, a leave of absence with or without crediting interim earnings, i. H. Earnings from other activities are to be declared.

As long as an employment relationship exists, the employee may only fulfill a further employment contract to a limited extent or only with the consent of the employer, see also part-time job . The exemption does not change anything here. However, the employer can allow the employee to work on the side during the time off. If this is done without taking interim earnings into account, the employee receives practically two salaries .
If, however, the interim earnings credited, the employee will receive only the difference between the Indemnifying employers pay from the new job and the salary of the exempt employment.
Should an employer to the imputation of any interim earnings, the employee for the remaining term of his employment contract has to the immanent labor -compete with. In return, you may work for competing companies during the release phase if the employer does not contractually exclude or even agree that interim earnings can be offset.

Social security law

An exemption can affect a possible blocking period for receiving unemployment benefits according to Section 159 SGB III ( Third Book of the Social Security Code ) and the duration of entitlement according to Section 148 (1) No. 4 SGB III.

Contrary to the older opinion, the employee is - according to the case law of the Federal Social Court (September 24, 2008) - a compulsory member of the pension, health, long-term care and unemployment insurance until the final departure.

Exemption grounds

The reasons for exemptions are different.

On the employer's side, the leave of absence is often related to the termination of the employment relationship ( dismissal ), in particular to behavior-related and personal dismissal . Even with the dismissal for operational reasons an exemption can be made by the employer if the employer pronounce dismissal with notice, but on the further work during the notice period is no longer interested. This is often the case in the context of bankruptcy .

On the employee side, there are often projects for which the vacation entitlement is insufficient, e.g. B. world trip , long training , childcare etc.

In certain circumstances, employees are entitled to paid or unpaid leave. In Germany, claims to exemption are based in particular (without claim to completeness):

in the Works Constitution Act (BetrVG): for activities in the works council ( Section 37 BetrVG) and for works meetings ( Section 44 BetrVG) as well as youth and trainee representatives ( Section 65 BetrVG) and the youth and trainee assembly ( Section 71 BetrVG);

in the Youth Employment Protection Act (JArbSchG) for under 18-year-olds ( Section 1 JArbSchG): for participation in vocational school lessons ( Section 9 JArbSchG), for examinations and external training measures ( Section 10 JArbSchG);

in the Vocational Training Act (BBiG): paid leave for participation in vocational school lessons and examinations, as well as in the event of involuntary hindrance ( § 15 and § 19 BBiG);

in staff representation laws ;

in the Workplace Protection Act (ArbPlSchG): ( § 1 , § 10 and § 14 ArbPlSchG);

in the Social Security Code (SGB): under certain circumstances for the supervision, care or care of a sick child ( Section 45 SGB V, see Children's Sickness Benefit ), for representatives of severely disabled persons ( Section 178 SGB IX) and persons of trust for severely disabled people ( Section 179 SGB IX);

in the Mutterschutzgesetz (MuSchG): paid leave for examinations during pregnancy and maternity ( § 16 MuSchG);

in the Federal Parental Allowance and Parental Leave Act (BEEG): for parental leave and grandparent leave ;

in the Care Leave Act (PflegeZG): for short-term incapacity to work ( Section 2 PflegeZG) and for care leave ( Sections 3 and 4 PflegeZG);

in the German Civil Code (BGB): paid leave of absence in the event of temporary hindrance due to a personal reason through no fault of your own ( Section 616 BGB), in particular if a doctor's visit is medically necessary at the time, e.g. in the case of acute complaints or if the The doctor does not offer an appointment outside of working hours, or in certain cases in which parents have to fulfill their duty of supervision at short notice ; however, in collective agreements, works agreements or employment contracts, deviations can be agreed both in favor of and against the employee, in particular with regard to the scope and payment of the claim. Furthermore, there is a right to search for a job after a termination ( § 629 BGB) as well as in the case of fixed-term contracts of up to 10 days for multi-year employment relationships, which is not mandatory but can be explicitly regulated in the employment or collective agreement as unpaid.

in state laws (e.g. Fire Brigade Act, Disaster Protection Act).

Further entitlements to exemption can be set out in collective agreements , works agreements or service agreements (in the public sector) as well as in individual employment contracts .

literature

Stefan Kramer: Designing an exemption from work. In: THE OPERATION. (DB) 2008, pp. 2538-2542.
Stefan Kramer: Consequences of the current BSG jurisprudence - is there social security protection in the event of leave? In: Labor and Labor Law. (AuA) 2009, pp. 604-606.

Individual evidence

↑ LAG Schleswig-Holstein, June 25, 2009 - 6 Ta 112/09. Retrieved December 19, 2018 .

↑ Strike in the day-care center: Duty of supervision comes before job. (No longer available online.) Ruhrnachrichten.de, February 13, 2008, formerly in the original ; Retrieved May 2, 2013 . ( Page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.@1@ 2
↑ ErfK / Müller-Glöge § 629 BGB marginal number 10
↑ MünchKommBGB-Schwerdtner § 629 BGB Rn 1

[1] LAG Schleswig-Holstein, June 25, 2009 - 6 Ta 112/09. Retrieved December 19, 2018 .