DE: Holiday compensation claim as obligation of the insolvency estate

Mar 11, 2022 Benn-Ibler Rechtsanwälte

According to the German Federal Labour Court (Bundesarbeitsgericht, BAG), a claim for unused holiday pay in the full amount is classified as an obligation of the insolvency estate if a strong provisional insolvency administrator still claims the employee's work performance at the time of the termination of the employment relationship.

In the case at hand, an employee asserted a claim for holiday compensation against the insolvency administrator. After filing for the opening of insolvency proceedings, the defendant was appointed as a strong provisional insolvency administrator with administrative and disposal powers. The plaintiff's employment was terminated by extraordinary notice as of the end of September 2017. The employee had performed his owed work and also had a holiday entitlement of 20 days. Finally, insolvency proceedings were opened in November 2017. The employee's claim failed both at the Labour Court and the Regional Labour Court. According to Section 55 para 2 of the Insolvency Code (Insolvenzordnung, InsO), a holiday compensation claim that arises during provisional insolvency administration is not to be classified as an obligation of the insolvency estate. The appeal, however, was successful.

In the view of the BAG, the plaintiff employee is entitled to compensation for holiday. It was to be classified as an obligation of the insolvency estate under Sec. 55 para 2 sentence 2 in conjunction with sentence 1 InsO. If the strong provisional insolvency administrator claims the labour of an employee, she has to fulfil all obligations arising from the employment relationship as a kind of "total package". This also includes holiday and continued payment in the event of illness. This also includes claims that do not create any value for the estate. In this respect, the InsO does not provide for any restriction of the employer's obligations in favour of the estate. According to the BAG, the assumption that the holiday compensation claim is a mere monetary claim that is no longer in the context of work performance and thus cannot be taken into account as consideration is incorrect. Sec. 55 para 2 InsO only presupposes that the employee's work performance is basically claimed in order to be classified as an obligation of the insolvency estate.

BAG, 6 AZR 94/19 (25.11.2021)