LAG Düsseldorf: Zero short-time work reduces vacation entitlement
The LAG Düsseldorf answered the question of whether zero short-time work, i.e. the complete cessation of work as part of short-time work, reduces the vacation entitlement of the employees concerned with a clear "yes". It agreed with the decision of the lower court, the ArbG Essen.
Facts: Vacation canceled after zero short-time work
The plaintiff had been employed by the defendant as a sales assistant with baking activities since March 1, 2011 on a part-time basis as part of a three-day week. Based on an annual vacation entitlement of 28 days for a five-day week, she was therefore entitled to the equivalent of 14 days' vacation per year.
Due to the coronavirus pandemic, the plaintiff was subject to zero short-time working several times in the period from April 2020 to December 2020. In June, July and October, this lasted the entire month. In August and September, the plaintiff had taken a total of 11.5 working days' leave. She therefore sought a declaration that she was still entitled to 2.5 working days of vacation for 2020. The employer, on the other hand, claimed that the leave entitlement for the period of short-time work should be reduced proportionately to zero and that she was therefore no longer entitled to any further leave.
The arguments on both sides
The plaintiff argued that since employees are obliged to report to the employer even during the period of zero short-time work and short-time work can be terminated by the employer at short notice at any time, there is no possibility of planning the time off. Therefore, there is no free time. Furthermore, cyclical short-time work is not carried out at the request of the employee, but in the interest of the employer. Therefore, zero short-time work cannot have any influence on employees' existing vacation entitlements.
On the other hand, the employer argued that there was no obligation to work during the zero short-time working period and therefore no vacation entitlement would arise. Therefore, the leave entitlement was to be reduced proportionately. The employee's vacation entitlement was therefore exhausted. There was therefore no further entitlement to vacation days.
The reasons for the decision of the Higher Labor Court
Like the lower court, the LAG Düsseldorf ruled in favor of the employer. Vacation entitlement in accordance with Section 3 of the Federal Leave Act serves the purpose of recovery from work performance. Therefore, this only arises if there is also an obligation to work. During short-time working, the mutual obligations of employees and employers to provide services are suspended accordingly. Full-time employees are therefore temporarily treated as part-time employees during this period. Accordingly, their vacation entitlement must also be reduced. This is also in line with the case law of the ECJ. The latter had already ruled that the European minimum leave entitlement under Art. 7 (1) of Directive 2003/88/EC does not arise during short-time work. In contrast, a more favorable regulation does not exist in German law, neither in the special regulations on short-time work nor in the Federal Leave Act. Nor can short-time work be compared with incapacity for work. The fact that short-time work was caused by the coronavirus pandemic does not change this.
The plaintiff's vacation entitlement was therefore to be reduced pro rata for each full month of short-time working. Her vacation entitlement was therefore completely exhausted.
It remains to be seen whether this issue will also be dealt with by the Federal Labor Court in the future. The LAG Düsseldorf has allowed an appeal.
Conclusion on vacation entitlement during short-time work zero
Employees should be careful when claiming their vacation entitlement during short-time work. Employers should also keep this decision in mind and instruct their employees accordingly if necessary. During zero short-time working, employees are obliged to notify the employer and there is a possibility that it may be terminated prematurely at short notice. However, there is no obligation to work. Accordingly, no leave entitlement arises during this period and the annual leave entitlement is reduced proportionately.
Do you have questions about vacation entitlement during short-time work? We will be happy to help you.
