If individual working days are completely lost due to short-time work, this must be taken into account when calculating annual leave.
The plaintiff is employed by the defendant three days a week as a sales assistant with baking activities. With a six-day week, she would have been entitled to an annual holiday of 28 working days according to the employment contract. With an agreed three-day week, this corresponded to a holiday entitlement of 14 working days.
Due to the loss of work caused by the Corona pandemic, the defendant introduced short-time work. For this purpose, the parties entered into short-time work agreements, on the basis of which the plaintiff was, inter alia, completely exempted from work duties in the months of April, May and October 2020 and only worked on a total of five days in the months of november and December 2020.
The defendant recalculated the leave on the occasion of the short-time work absences. It calculated the plaintiff's annual leave for the year 2020 at 11.5 working days. The plaintiff challenged this in the present action. She took the view that working days lost due to short-time working had to be treated as working days under holiday law. The defendant was therefore not entitled to reduce her leave. She was entitled to a further 2.5 days of leave for the year 2020.
The lower courts dismissed the action. The plaintiff's appeal to the Ninth Senate of the Federal Labour Court was unsuccessful. The plaintiff has no claim against the defendant for a further 2.5 working days of recreational leave for the calendar year 2020. Pursuant to section 3(1) of the Federal Leave Act (BUrlG), the entitlement to paid annual leave amounts to 24 working days if the work is evenly distributed over six days per week. If, according to the employment contract, an employee's working time is distributed over fewer or more than six working days in a calendar week, the number of days of leave must in principle be calculated taking into account the working rhythm relevant for the holiday year in order to ensure an equivalent duration of leave for all employees (24 working days x number of days with work obligation divided by 312 working days).* This applies accordingly to the contractual additional leave if the parties to the employment contract - as in the present case - have not agreed on an arrangement for the calculation of the leave entitlement that deviates from section 3(1) BUrlG.
With the plaintiff's contractual three-day week, an annual leave of 14 working days was initially calculated (28 working days x 156 days with compulsory work divided by 312 working days). The loss of whole working days due to short-time work justified a recalculation of the holiday entitlement during the year. Working days lost due to short-time work agreed in individual contracts are not to be equated with periods of compulsory work, neither under national law nor under Union law. The plaintiff's holiday entitlement from the calendar year 2020 therefore does not exceed the 11.5 working days calculated by the defendant. If only the three months in which work was completely absent were taken as a basis, the plaintiff would only have a holiday entitlement of 10.5 working days (28 working days x 117 days with compulsory work divided by 312 working days).
Federal Labor Court, Judgment of november 30, 2021 - 9 AZR 225/21 -
Previous instance: Düsseldorf Regional Labor Court, judgment of March 12, 2021 - 6 Sa 824/20 -
* Case law of the Senate cf. BAG 19 March 2019 - 9 AZR 406/17 - (special leave); cf. 24 September 2019 - 9 AZR 481/18 - (partial retirement).
In another case, the Ninth Senate recognised that these principles also apply if short-time work has been effectively introduced on the basis of a works agreement.
Federal Labor Court, Judgment of november 30, 2021 - 9 AZR 234/21 -
Previous instance: Baden-Württemberg State Labor Court - Freiburg Chambers -, judgment of May 3, 2021 - 9 Sa 1/21
Source: Press release of the Federal Labour Court of 30.11.2021
