The Düsseldorf LAG confirmed in its Judgment of 12.03.2021 the opinion of the Essen Labour Court and the case law of the ECJ and ruled that in Short-time work zero no vacation entitlements arise. The decision thus provides more legal certainty on the issue.
In plain language, this means: For every full month of zero short-time work, the vacation is pro rata, i.e. reduced by 1/12.
This is justified by the actual meaning of vacation, because employees should be able to recover from their owed and performed work. However, if there is no obligation to work and if there is no work at all during short-time work zero, the need for recreation is eliminated.
Sounds logical, as we think.
The reason for this is parttime work: short-time workers are temporarily treated as part-time workers whose vacation must be reduced equally proportionally. This also makes sense - otherwise it would be unfair to full-time employees.
The BAG will probably position itself in the highest court on this, as the audit is approved. However, it is to be expected that the BAG shares the LAG's view, as the situation is comparable to the case in which the employee is on a “sabbatical” (unpaid special leave). For this purpose, the BAG provided in a verdict In order to assess the origin of vacation entitlement, it is already established that it is not the existing employment relationship that is decisive, but whether the employee must perform his work.
What does that mean in practice?
With the ruling of the Düsseldorf LAG, employers can easily argue a reduction in vacation - at least for full months of short-time work zero.
If you would rather be on the safe side and wait for confirmation from the FOPH, make provisions for the shortened vacation days.
Calculation example:
A company grants its employees 30 days of vacation per year. Without a reduction, employees are entitled to 2.5 vacation days per month (30/12 = 2.5)
For 3 months, the company is introducing zero short-time work:
3 x 0 + 9 x 2.5 = 22.5 vacation days
For 3 months, the company introduces 50% short-time work with 3 working days a week:
3 x 1.5 + 9 x 2.5 = 27 vacation days
Side note:
In this context, it is important that short-time work zero is not to be confused with incapacity to work due to illness, in which benefits obligations are not waived on both sides. In this case, the employee is currently unable to recover due to illness, so that there is no reduction in vacation here.
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