There is no obligation to work during short-time work “zero”. For this reason, there are no vacation claims during this period. That has that Regional Labor Court (LAG) Düsseldorf decided. For every full month of short-time work, the vacation that employees themselves are entitled to is therefore “zero” by one twelfth. This is also in line with EU law. The LAG has revised the Federal Labor Court approved.
Zum Hintergrund
Sales aid with baking activities has been on “zero” short-time work since June 2020 due to the corona pandemic. Her employer had reduced her vacation entitlement by 1/12 for each full month for this period. The sales aid defended itself against this with a lawsuit. that Regional Labor Court (LAG) Düsseldorf It therefore decided whether the Vacation entitlement reduced due to short-time work will.
verdict
The Düsseldorf LAG dismissed this action by judgment of 23.03.2021 (Ref. 6 Sa 824/20) off. This followed the employer's argument: Full months of short-time work “zero” reduce vacation entitlement by 1/12 — even without a corresponding agreement. The origin of vacation entitlement (Section 3 Federal Vacation Act (BURLG)) Only requires that there is an employment relationship, but not that employees actually work.
Yet that has Federal Labor Court (BAG) It has now been confirmed in several decisions that this is not fully applicable (e.g. BAG, judgement of 19.3.2019 — 9 AZR 406/17): Especially when the parties to employment agree by mutual agreement that the work obligations should be suspended, the recreational purpose of the vacation cannot occur. As a result, there is no vacation entitlement in these cases — and according to the Düsseldorf LAG, short-time work “zero” represents such a case.
scope
If employees have been on short-time work “zero” for at least one month, the “automatic” reduction consists of Only one right to pro rata annual vacation. However, if short-time work has not affected 100% of working time, this case law should not apply. In this case, the performance obligations would not have been completely suspended. The recreational purpose of the vacation to be granted can therefore still occur.
Illegal registration of short-time work
It has also not yet been finally clarified whether vacation entitlement can also be reduced if employers have unlawfully introduced short-time work “zero”: e.g. by simple order without an agreement.
According to previous case law, a unilateral order or an agreement that is ineffective in individual cases is not sufficient. Accordingly, vacation entitlement is unlikely to decrease, as the benefit obligations have not been suspended.
We are happy to advise you
Do you have a similar problem? Would you like to find out more about short-time work? Should your previous agreements be reviewed or subject to a risk assessment? We are happy to help you: Our employment law team will answer all your questions and advise you on possible consequences in your individual case.
