In its ruling of 12.03.2021, the State Labour Court Düsseldorf confirmed the assessment of the Labour Court Essen as well as the jurisdiction of the European Court of Justice and decided that no holiday entitlement arises in the case of short-time work “zero”. The decision thus provides more legal certainty on the issue.
Therefore, this means that for each full month of short-time work zero, the holiday is to be reduced proportionately, i.e. by 1/12.
This is justified by the actual meaning of holidays (“recreational leave”), 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 in the case of short-time work, the need for recovery does not occur.
Sounds logical to us.
And part-time work is the reason for this decision: short-time workers are temporarily treated as part-time workers whose leave is also cut accordingly. Makes sense - otherwise it would be unfair to full-time employees.
The Federal Labour Court will probably take a position on this, as the appeal has been allowed. However, it is to be expected that the Federal Labour Court will share the view of the State Labour Court Düsseldorf, as the situation is comparable to the case in which the employee is on "sabbatical" (unpaid special leave). In this regard, the Federal Labour Court already stated in a ruling on the assessment of the accrual of the holiday entitlement that it is not the existing employment relationship that is decisive, but whether the employee has to perform his/her work.
With the ruling of the State Labour Court Düsseldorf, employers can argue a reduction of leave - at least if short-time work zero was applied for the full month.
If you prefer to play it safe and wait for a confirmation from the Federal Labour Court, you can set up accruals for the reduced days of leave.
A company grants its employees 30 days of leave per year. Without reduction, the employees are entitled to 2.5 days of leave per month (30 / 12 = 2.5).
For 3 months the company introduces short-time work zero:
3 x 0 + 9 x 2.5 = 22.5 leave days
For 3 months the company introduces short-time work 50% with 3 working days per week:
3 x 1.5 + 9 x 2.5 = 27 leave days
It is important to note that short-time work zero is not to be confused with incapacity for work due to illness, in which the employment obligations are not cancelled on both sides. In this case, the employee cannot recover because of his or her illness, so that the leave is not reduced.
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