Federal Labour Court ruling on the start of the two-week period under Section 626(2) of the German Civil Code (BGB)

In a recent ruling by the Federal Labour Court (judgement of 4 December 2025 – 2 AZR 55/25), the Second Senate examined the issue of when the notice period under Section 626(2) of the German Civil Code (BGB) begins in the event of an employee’s absence due to annual leave.

What had happened?

On 27 April 2023, an allegation of sexual harassment was made against the employee, who had been employed by the employer as a train manager since 2006. At that time, the employee was on annual leave until 21 May 2023 inclusive. It was only after his return from leave that the employer invited the employee, by letter dated 22 May 2023, to a hearing regarding the allegations. After the employee had stated that he wished to respond in writing only, he rejected the allegations by letter dated 30 May 2023. Finally, after consulting the works council, the employer notified the employee of the summary termination of his employment by letter dated 6 June 2023 – a total of 40 days after the allegations were first raised.

In the unfair dismissal proceedings, the employee argued that the two-week notice period set out in Section 626(2) of the German Civil Code (BGB) had not been observed. The employer, on the other hand, took the view that it was not obliged to hold a hearing with the employee whilst he was on annual leave, as contacting him during his holiday would have been contrary to the purpose of the holiday, which was to allow him to rest and recuperate.

BAG: Obligation to consult the employee even whilst they are on holiday

Under Section 626(2) of the German Civil Code (BGB), notice of termination for cause must be given within two weeks of becoming aware of the relevant facts. If the employer requires further clarification of the facts prior to giving notice – for example, by hearing the employee’s side of the story – they must carry this out with due diligence. The Federal Labour Court (BAG) makes it clear that neither the Federal Leave Act nor EU law imposes an absolute ban on making contact which would, for example, justify waiting until the end of a four-week holiday. Rather, the employer is obliged to at least attempt to make contact. It is then up to the employee to decide whether and how to respond to this. In any event, a blanket refusal to attempt contact does not result in the suspension of the limitation period.

In the case on which the Federal Labour Court’s ruling was based, the notice period had therefore already expired at the time the notice of termination was given, and the summary dismissal was consequently invalid.