Unauthorized Vacation Extension: When Is Termination Possible?

The vacation is over, the return flight is cancelled, or an illness delays the journey home: Employees quickly face the question of what employment-law consequences may follow. It is not solely decisive that work is resumed late. Rather, the key factors are why the employee is absent, whether the employee is responsible for this, and how the employee responds to the employer.

Knowingly extending vacation is therefore assessed differently under the law from a situation in which returning home is objectively impossible despite serious efforts.

The duty to work resumes when the vacation ends

Once the approved vacation has expired, work must generally be resumed. Any remaining vacation days may not simply be added without the employer’s consent.

If an employee knowingly remains at the vacation destination longer even though no further leave has been approved, this may constitute a breach of contractual employment duties. The appropriate employment-law response nevertheless depends on the individual circumstances.

In the case of a first breach of duty, it will generally have to be examined whether a warning is sufficient as a milder measure. Termination may become more relevant in particular if the conduct is especially serious, is repeated, or the employee indicates that the employee is knowingly disregarding work obligations.

A late return does not automatically mean termination

For the purposes of assessing termination, the reason for the absence is particularly important.

An employee who extends vacation by several days without authorization is in a different situation from someone whose return flight was cancelled at short notice or who had no realistic possibility of returning to Germany on time because of an extraordinary event.

The following should therefore be examined in particular:

• How long did the absence last?
• Why could work not be resumed on time?
• Could the delay have been avoided?
• Did the employee try to find another way to return?
• When and how was the employer informed?
• Had there already been comparable breaches of duty?

Only on the basis of these circumstances can it be assessed whether a breach of duty exists at all and whether a warning or termination may be proportionate.

When flights, trains, or other return travel are cancelled

Particular problems arise when employees have ended their vacation on time but cannot reach their workplace on time because of events during the return journey.

Such situations may arise, for example, in the event of flight cancellations, major disruptions to transport, official measures, or comparable extraordinary circumstances.

In these cases, the employee’s conduct is decisive. The employee should not simply allow the original travel plan to fail. Instead, it should be examined whether a reasonable alternative connection or another realistic way of returning is available.

Early notification to the employer is equally important. As soon as it becomes foreseeable that work cannot be started on time, the employer should be informed of the delay and its cause.

Evidence should be preserved

In a dispute, it may matter whether the employee can substantiate the alleged problems with the return journey. It is therefore advisable to retain relevant documents, for example:

• Notices concerning cancelled flights or trains,
• Booking and rebooking confirmations,
• Messages from the tour operator,
• Official notices,
• Evidence of attempts to arrange alternative travel, and
• Communications with the employer.

This can later demonstrate that the delay was not deliberately caused.

Illness during vacation

An illness during vacation can also mean that an employee does not return as planned. Under employment law, the illness itself must be distinguished from an unauthorized extension of vacation.

If an employee is in fact unfit for work, the statutory duties to notify and provide evidence generally apply. An employee staying abroad may also have additional notification duties.

The employer should therefore be informed as soon as possible about the incapacity for work, its expected duration, and the employee’s location.

Illness does not create additional vacation days at the end of a trip

Under Section 9 of the Federal Leave Act (BUrlG), medically documented days of incapacity for work are generally not counted against annual vacation.

However, this merely means that the corresponding vacation days may remain available. The employee may not unilaterally add them directly to the original vacation.

These vacation days must generally be requested again and approved by the employer.

Foreign medical certificates of incapacity for work

A medical certificate issued abroad may also generally be suitable as evidence of incapacity for work. It is decisive that the certificate does not merely indicate an illness but certifies actual incapacity for work.

If a dispute later arises concerning the illness, the specific form and content of the certificate may play a role, as may the other circumstances of the case.

No pay despite an unforeseeable delay?

The question of whether termination is justified must be separated from the question of remuneration.

Even if the employee is not personally responsible for a late return, this does not automatically mean that the employer must pay remuneration for the missed working time.

In principle, the employee bears the risk of being able to reach the workplace on time. If the employee cannot perform work because of an obstacle on the way to work or during the return journey, the entitlement to remuneration for that period may lapse.

This can result in a situation in which termination is not justified, but the employee nevertheless receives no pay for the missed working days.

When may a warning or termination be issued?

A warning may be considered in particular if the employee has culpably breached contractual employment duties, but a recurrence can be avoided in the future through an appropriate warning.

Termination, by contrast, requires a more extensive examination. In particular, in the case of extraordinary termination, it must be assessed whether the conduct is so serious that the employer can no longer reasonably be expected to continue the employment relationship.

An unauthorized extension of vacation can be significant under termination law. However, it does not follow that every additional day of absence automatically justifies effective termination.

Relevant factors include the duration and circumstances of the absence, the employee’s responsibility, communication with the employer, and whether a warning would have been sufficient as a milder measure.

What employees should consider when facing return-travel problems

1. Inform the employer early: The employer should be notified as soon as a delay becomes apparent.
2. Make serious arrangements for the return journey: Reasonable alternatives should be examined and used where appropriate.
3. Preserve documents: Evidence of cancellations, rebookings, or illnesses should be retained.
4. Do not extend vacation without authorization: Remaining vacation days may not be added to the previous vacation without consent.
5. Respond to letters from the employer: Warnings or terminations should not be ignored.

Termination after a late return from vacation

If the employer issues a termination because of a late return, its validity should be reviewed promptly.

The basic time limit for bringing an action for protection against dismissal is the three-week period under Section 4 of the Protection Against Unfair Dismissal Act (KSchG). The period begins when the written termination is received. If the deadline is missed, the termination may generally be deemed effective under the statutory provisions.

Further information on the procedure, deadlines, and costs of an action for protection against dismissal can be found in the guide to actions for protection against dismissal.

Conclusion

Under employment law, there is a significant difference between an employee deliberately extending vacation and an employee being unable to return on time because of an unforeseeable event.

In the case of an unauthorized extension of vacation, a warning and, where applicable, termination may be considered. If the return is prevented through no fault of the employee, the focus is instead on notifying the employer on time, making comprehensible efforts to return, and maintaining good documentation.

If an employee receives a warning or termination because of a late return, the assessment should therefore not focus solely on the number of days absent. The specific circumstances of the individual case are decisive.

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