D.he labor market policy instrument of short-time work saved millions of employees from the Corona crisis for the time being. It gave the companies the necessary planning security and prevented large-scale layoffs. Nonetheless, questions remained unanswered, such as the effects of the so-called “short-time work zero” agreement in companies on employees’ vacation entitlements. According to the Federal Holiday Act, the right to rest leave arises with the activity, employees are entitled to at least 24 working days of leave annually.
In various preliminary proceedings, the European Court of Justice had clarified that it considers a possible reduction of the claim to zero to be in conformity with European law. The Luxembourg judges also recognize a proportionate reduction, because no work has to be performed during that same period (case C-385/17). However, this affects the European legal situation, the final clarification by the Federal Labor Court (BAG) is pending.
As far as is known, the Düsseldorf Regional Labor Court (LAG) has now for the first time decided a higher-level court on a dispute relating to “zero short-time work” in the corona pandemic. The LAG confirmed with its judgment (Az .: 6 Sa 824/20) that short-time work not only reduces working hours but also vacation entitlement. The court based its decision on the specifications of the ECJ. German law does not contain any more favorable regulation on this. There is no special regulation for short-time work in this regard, nor does the Federal Holiday Act provide anything else, said the LAG: “In particular, zero short-time work cannot be compared with incapacity for work.”
The dispute was about the vacation entitlement of an employee in system catering for the past year. According to the employment contract, the part-time worker was entitled to 14 days of vacation. From April onwards, due to the corona pandemic, “zero short-time work” was repeatedly applied to the plaintiff; in the months of June, July and October 2020 this was in place continuously. The employer then reduced the entitlement proportionately.
Vacation has to be earned
The woman went to court and argued that the short-time work was not done at her request and did not constitute free time. The LAG followed the employer’s position, in particular because the right to vacation leave presupposes an actual activity. A revision to the BAG in Erfurt is still possible.
The current decision will meet with resistance. The German Trade Union Confederation (DGB) had repeatedly stated that the Federal Holiday Act does not indicate that a reduction in holiday entitlement should be permissible in the case of short-time work. “In the opinion of the DGB and its member unions, employers are not entitled to reduce the statutory minimum vacation entitlement due to the cyclical short-time work, which has increasingly occurred due to the Corona crisis,” said an earlier DGB assessment. Otherwise the peace of the company would be considerably disturbed.
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