Status: 11/30/2021 3:28 p.m.
The proportional reduction in annual leave is legal if employees do not go to work for a few days due to short-time working. That was decided by the Federal Labor Court today.
Employees who were on short-time work due to Corona and thus had a day’s absence from work must expect their annual vacation to be reduced proportionally. That was decided by the Federal Labor Court today. In the corona pandemic, the court thus passed a landmark judgment on a “question that is highly controversial,” as the presiding judge Heinrich Kiel said.
The judge’s ruling could affect tens of thousands of workers in Germany in the coming months. Because in view of the force of the fourth corona wave, the Federal Ministry of Labor has just extended the easier access to short-time work until March 31, 2022.
Labor court follows his line
The ruling applies to short-time work zero with longer periods without work, the highest German labor court announced today in Erfurt. Short-time work zero means that work for employees is temporarily completely suspended. According to the judgment announced today, there is no partial vacation entitlement for periods without an obligation to work. So far there has been no clear regulation for these situations.
The Federal Labor Court thus followed its line. There had already been decisions beforehand according to which the extent of the vacation should be based on the number of days agreed upon with compulsory work. At that time, the judges had already affirmed a reduced vacation entitlement on other questions – in the case of parental leave or partial retirement models.
So far, only every ninth company has cut vacation time
The current case concerned the lawsuit of a saleswoman from North Rhine-Westphalia: The woman had sued after her vacation was cut. She works as a sales assistant three days a week. Last year she was put on short-time work for several months – she was given leave, but shortened by a few days. The Federal Supreme Court thus confirmed the judgment of the Düsseldorf Regional Court.
The German Trade Union Federation (DGB) had fought against vacation cuts in short-time work and supported the plaintiff. Board member Anja Piel said in the run-up to the verdict: “From the point of view of the DGB, it is inadmissible for employers to reduce vacation time in the event of pandemic-related short-time work.”
It is still unclear what effects the judgment will have in practice: A study by the Institute for Employment Research (IAB) in Nuremberg showed that this year, on average, only every ninth company canceled vacation days for its short-time employees. The majority of the companies therefore waived this.