No holiday without compulsory work - BAG confirms case law of the Düsseldorf Higher Labour Court on the reduction of leave in the case of short-time work

As early as spring 2021, the Düsseldorf Higher Labour Court (LAG), Case No. 6 Sa 824/20, answered "yes" to the question, which was highly contentious at the time, of whether employees' holiday entitlement can be reduced to "zero" during periods of short-time work. This decision has been confirmed by the BAG (ruling of 30 November 2021, 9 AZR 225/21) and clarified once again that working days that are completely lost due to short-time work can be disregarded when calculating annual leave.

The decision is in line with the case law of the BAG, according to which no holiday entitlement arises during periods in which there is no obligation to work as agreed.

In the case decided, the plaintiff worked part-time for the defendant as a sales assistant in a bakery. Accordingly, she was entitled to an annual holiday of 14 working days.

Due to the Corona pandemic, the plaintiff was completely on short-time work in the months of April, May and October 2020. In November and December 2020, she only worked on five days. Accordingly, the defendant recalculated the holiday and arrived at a holiday entitlement of 11.5 working days in 2020. The plaintiff filed a complaint against this. In her opinion, the lost working days due to short-time work had to be counted as working days under holiday law.

After the LAG Düsseldorf had already dismissed the action and the plaintiff appealed, the BAG has now confirmed the decision of the LAG.

In principle, the (statutory) holiday entitlement of employees is calculated according to the following formula:

24 days of leave x number of days with compulsory work

312 workdays

The loss of entire working days due to short-time work justifies a recalculation of the holiday entitlement during the year using the above formula, which is also applied, for example, in the case of a change from full-time to part-time work during the year. This applies to short-time work agreed in individual contracts as well as to short-time work effectively introduced on the basis of a company agreement. Neither according to national law nor according to Union law are working days lost due to short-time work to be equated with periods of compulsory work.

The 9th Senate thus continues its case law that no entitlement to recreational leave arises without a duty to work. In 2019, the Senate had already ruled that an employee who was on unpaid special leave for the entire holiday year as agreed was not entitled to holiday leave.

Practice Note:

Overall, the decision is to be welcomed. On the one hand, it provides legal certainty with regard to the calculation of leave days during short-time work; on the other hand, it is in line with the decisions on the reduction of leave entitlements during an agreed sabbatical. As a quintessence, it can be drawn from this decision that no entitlement to recreational leave arises in the case of "agreed" leave.