Release from Work / Garden Leave (Freistellung)

At a glance

• Suspension of the duty to work while the employment relationship continues, usually in connection with a termination
• Can be paid or unpaid: normally paid in a termination context, often unpaid during ongoing employment and only by agreement
• Key distinction: revocable (widerruflich) or irrevocable (unwiderruflich)
• Only with an irrevocable Freistellung can outstanding remaining leave be credited and thereby fulfilled
• A unilateral Freistellung by the employer is permissible only where there is a legitimate interest
• For other income, § 615 BGB matters; whether it is credited depends on how the release is structured
• With an unpaid Freistellung of more than a month, health insurance through the employment ends

Revocable or irrevocable

This distinction drives almost every consequence. Behind it sits Annahmeverzug (default of acceptance): an employer who does not accept the work offered still has to pay for it (§ 615 BGB). That is exactly the position an employer is in during a Freistellung.

• Revocable Freistellung: the employer can call the person back at any time. The employer is in default of acceptance, so other income is credited against pay under § 615 sentence 2 BGB
• Irrevocable Freistellung: the employer finally waives the work. Remaining leave can be credited, but crediting other income requires an express clause

Validly fulfilling leave. Leave counts as taken only where the person can freely dispose of the time and knows that leave is being granted for it. As long as a recall remains possible, neither is true. The release wording must therefore name the specific days that count as leave and state that the release is irrevocable for those days. A blanket phrase such as "crediting all leave entitlements" is not reliably sufficient under case law.

Unpaid Freistellung

Beyond the termination context, an unpaid Freistellung is a tool during ongoing employment. Typical cases:

• annual leave is used up and further absence is needed
• bereavement and family events, where not covered by special leave or § 616 BGB
• longer trips, sabbaticals, or voluntary work
• waiting periods, for example until a course starts

There is no general entitlement to it; it rests on agreement. Two points are routinely missed: with an unpaid Freistellung of more than one month, membership of statutory health insurance through the employment ends, and the leave entitlement can be reduced pro rata for that period. Both should be discussed in advance and put in writing.

FAQ

May the employer impose a Freistellung unilaterally?

Only to a limited extent. In principle the employee has a right to actually be employed. A unilateral Freistellung is therefore permissible only if a legitimate employer interest prevails, for example after a dismissal has been issued, on suspicion of serious breaches of duty, or to protect trade secrets.

Is remaining leave settled by a Freistellung?

Only with an irrevocable Freistellung. As long as the employer reserves the right to call the employee back, leave cannot be validly fulfilled because the employee cannot freely dispose of the time. The release text should therefore state expressly that remaining leave is credited.

Must I have new earnings credited?

It depends on the structure. With a revocable Freistellung the employer is in default of acceptance, so other income is credited under § 615 sentence 2 BGB. With an irrevocable Freistellung, § 615 BGB does not automatically apply under case law; crediting then requires a corresponding agreement.

Am I still insured during the Freistellung?

Yes. Because the employment relationship continues and pay is normally still made, the employee remains covered by social security. The other duties from the employment relationship, such as confidentiality, also continue in principle.

Last updated: August 2026

This article provides general information and is not a substitute for legal advice in individual cases.