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Old 17.02.2017, 17:41
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Garden Leave and untaken/ accrued holidays

Dear All,

I am sorry I have not found any thread on this topic.

My husband was put on garden leave since the end of January (3 months until end of April) and by then, he had accrued 15+ days of holidays/ overtime.
The employer is refusing to compensate those days (and also the holidays that he accrues now while on garden leave) saying that he is not working and is being paid, so it is now "like being on holiday" for him.

Is that according to law? Our understanding is that they need to compensate both the days remaining before the garden leave and also the ones accrued.
Could you help with some background information?

Many thanks for your help!
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Old 17.02.2017, 17:58
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Re: Garden Leave and untaken/ accrued holidays

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Dear All,

I am sorry I have not found any thread on this topic.

My husband was put on garden leave since the end of January (3 months until end of April) and by then, he had accrued 15+ days of holidays/ overtime.
The employer is refusing to compensate those days (and also the holidays that he accrues now while on garden leave) saying that he is not working and is being paid, so it is now "like being on holiday" for him.

Is that according to law? Our understanding is that they need to compensate both the days remaining before the garden leave and also the ones accrued.
Could you help with some background information?

Many thanks for your help!
You can be made to take your days during notice period, so I don't think you have a chance with getting more days.
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Old 17.02.2017, 18:08
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Re: Garden Leave and untaken/ accrued holidays

Thank you.

I just looked in the termination letter. It states: "Any accrued and untaken holiday up to the final date of employment will be paid in your final salary". Signed by the Chairman of the Board.

Apparently, now they are trying to take their written word back.
How do we go about it?
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Old 17.02.2017, 18:30
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Re: Garden Leave and untaken/ accrued holidays

It's simple, he doesn't have any untaken holiday as they made him take it already.
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Old 17.02.2017, 18:35
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Re: Garden Leave and untaken/ accrued holidays

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I just looked in the termination letter. It states: "Any accrued and untaken holiday up to the final date of employment will be paid in your final salary".
That would be the case if he was actually working rather than on a three month long paid vacation.

Tom
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Old 17.02.2017, 18:53
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Re: Garden Leave and untaken/ accrued holidays

Actually I have seen some leeway here as when the employer wants you to take vacation, they have to give sufficient notice.

Also it is arguable that you will be out looking for a job versus suntanning in Mallorca.....

So if you have legal insurance get the lawyer to write a letter along those lines and demand payment - it may work (not guaranteed though)

K
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Old 17.02.2017, 18:55
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Re: Garden Leave and untaken/ accrued holidays

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Actually I have seen some leeway here as when the employer wants you to take vacation, they have to give sufficient notice.
He is free to take it anytime during his three months of gardening leave.

Tom
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Old 17.02.2017, 18:58
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Re: Garden Leave and untaken/ accrued holidays

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Dear All,

I am sorry I have not found any thread on this topic.

My husband was put on garden leave since the end of January (3 months until end of April) and by then, he had accrued 15+ days of holidays/ overtime.
The employer is refusing to compensate those days (and also the holidays that he accrues now while on garden leave) saying that he is not working and is being paid, so it is now "like being on holiday" for him.

Is that according to law? Our understanding is that they need to compensate both the days remaining before the garden leave and also the ones accrued.
Could you help with some background information?

Many thanks for your help!
Yes, often the case that the employee has to give his rest-holidays etc. to the garden leave. They could also just say, we put you on garden leave from xx after your holidays/overtime are up which they can force him to take before leaving. Paying out holidays/over time is - by law in Switzerland - only allowed as an exception.

But: He's employed until April, that means he's entitled to 1/3 of the 13. salary for that time, (if he's got that in his contract) garden leave or not.
If they don't want to pay that they have to put him out now and pay compensation instead of salary - which is a different thing and many companies don't want to do that hence they put people on garden leave.
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Old 17.02.2017, 19:18
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Re: Garden Leave and untaken/ accrued holidays

That's nice that the Chairman signed that. However, it doesn't apply in this case.

If put on garden leave, outstanding vacation balances are assumed to be compensated during that leave.

He will not get additional days off and they will not be paid out either.
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Old 17.02.2017, 19:53
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Re: Garden Leave and untaken/ accrued holidays

Thank you for your comments. The letter however also states, that while on garden leave, he needs to be available for them. So, this is not exactly holiday and will not be.
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Old 17.02.2017, 20:46
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Re: Garden Leave and untaken/ accrued holidays

You really need to speak to a specialist employment lawyer.

Here we can only guess; so much is going to depend on your husband's terms of employment, contract, etc.
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Old 17.02.2017, 20:56
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Re: Garden Leave and untaken/ accrued holidays

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Thank you for your comments. The letter however also states, that while on garden leave, he needs to be available for them. So, this is not exactly holiday and will not be.
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You really need to speak to a specialist employment lawyer.

Here we can only guess; so much is going to depend on your husband's terms of employment, contract, etc.
Okay, that is iffy.
In order to save money, first make an appointment with RAF now, they can give you infos on that maybe. If not, they can tell you who can. There is still time to take a lawyer after checking this option.
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Old 17.02.2017, 21:16
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Re: Garden Leave and untaken/ accrued holidays

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Thank you for your comments. The letter however also states, that while on garden leave, he needs to be available for them. So, this is not exactly holiday and will not be.
Overtime doesn't enjoy special protection other than the 25% bonus - provided your OH has been required to work overtime, otherwise it's some surplus on his hours-worked balance. In both cases he's assumed to have compensated for the balance during his leave.

That leaves the holiday days, 6.7 days for 2017 by April 30th (plus or minus whatever the balance at the end of the year was) based on 20 days for a full year, or a bit more than one work-week.

Holidays enjoy special protection as the employee is supposed to recuperate from work. If feasable they are to be taken upon mutual consent, preferably in big-ish blocks, at least two weeks are to be taken/used in one block assuming the employee worked the full or most of the year, which isn't the case here at all. At any rate they are to be taken during the time covered by the contract.

The garden leave covers any timeframe that might have been agreed upon without the leave. It will be extremely difficult to argue your OH was unable to recuperate during his garden leave even though he wasn't given one full week during which he was guaranteed to not get called. Especially considering the fact that it's commonplace these days for employees to check their mails during holidays.

In short:
Enjoy the garden leave, make the best of it and move on. This is Switzerland, not some anglo-saxon country where you're awarded $$$$ millions for stupidly hurting yourself with an overly hot coffee.
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Old 17.02.2017, 23:42
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Re: Garden Leave and untaken/ accrued holidays

Your husband can go to the Schlichtungsbehörde in your Kanton and ask for their legal opinion, if necessary they will call the employer to an arbitration hearing, and make a decision. As this is an employment matter, it will all be free of charge.
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Old 17.02.2017, 23:50
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Re: Garden Leave and untaken/ accrued holidays

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Thank you for your comments. The letter however also states, that while on garden leave, he needs to be available for them. So, this is not exactly holiday and will not be.
Just as a side-note. He needs to start applying for jobs immediately, if he plans to register with RAV in the near future.
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Old 18.02.2017, 08:40
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Re: Garden Leave and untaken/ accrued holidays

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...It will be extremely difficult to argue your OH was unable to recuperate during his garden leave even though he wasn't given one full week during which he was guaranteed to not get called.
He's got 15 days holiday. He's got 3 months gardening leave - ~60 days. Couldn't it be argued that the 15 days holiday, he does't have to be available - anymore than an employee on vacation must be available (to come into the office - as opposed to being contactable). And even apply the same to the accrued time? Of course, he would have to inform them that on such and such dates he'll be away. But it seems to me it would be hard to argue that someone has their vacation days if they're obliged to stay at home close to a phone.

I think it is generally accepted that vacation days are yours to use to recuperate as you wish.

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Old 18.02.2017, 08:58
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Re: Garden Leave and untaken/ accrued holidays

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Thank you for your comments. The letter however also states, that while on garden leave, he needs to be available for them. So, this is not exactly holiday and will not be.
All pretty standard - but he won't be called in.

Forget about the 15 days and enjoy the gardening leave!

Last edited by dodgyken; 18.02.2017 at 09:39.
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Old 20.07.2017, 17:01
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Re: Garden Leave and untaken/ accrued holidays

*Update* for those who are interested.

My husband addressed this question to a lawyer, specialized in employment law, consultation fees covered according to the Rechtschutzversicherung.

The lawyer said it was a clear case and he needed to be paid. Eventually, he got 12 days paid, and not the requested 15, as the former employer found out that my husband was away for 3 days during the garden leave.

Thank you for your support!
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Old 20.07.2017, 18:06
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Re: Garden Leave and untaken/ accrued holidays

Thanks for coming back with the info, Marusja.
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Old 20.07.2017, 19:29
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Re: Garden Leave and untaken/ accrued holidays

When on garden leave during notice period, it is assumed under Swiss law that the person is searching full time for a new job. An employee is not simultaneously put on gardening leave and enjoying vacation.

Employers can deduct upto 1/3rd of the outstanding vacation balance and insist this is considered taken during the garden leave.

As the employer is not generally permitted to forfeit the vacation entitlement, they are obliged to pay the balance at the end of the employment contract.

Holiday entitlement continues to accrue during garden leave, as does bonus entitlement (unless it can be proven to be fully discretionary) and share plan vesting.
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