BDA AGENDA 07/21 | TOPIC OF THE WEEK

The current pandemic situation raises a large number of questions under holiday law, which particularly concern the relationship between short-time working and the accrual, granting and taking of holiday. Among other things, this concerns the question of whether existing leave must be taken before the introduction of short-time work or how leave can be granted during existing short-time work.

The question of whether employees are entitled to zero holiday entitlement during periods of short-time working is particularly topical in this context. This question has not yet been answered by the highest court. The predominant opinion tends towards the fact that a holiday entitlement does not arise on a pro rata basis during periods of short-time working. The Düsseldorf Regional Labour Court also recently confirmed this. This decision is in line with European case law and also with the prevailing opinion in the literature on the subject. It is assumed that leave in periods of short-time work is to be treated in accordance with the regulations on part-time work and thus only accrues on a pro rata basis.

The accrual of holiday entitlements is linked to an actual obligation to work. In view of the fact that the purpose of recuperation leave is to recover, this presupposes an obligation to work, according to the Regional Labour Court. Since during short-time work the mutual obligations to perform were suspended, short-time workers were treated as temporary part-time employees whose recuperation leave was also to be reduced on a pro rata basis. Accordingly, no holiday entitlement arises during periods in which no work is performed due to short-time work.

This also complies with European law, since according to the case law of the European Court of Justice, the European minimum leave entitlement does not arise during short-time work. The situation is different, however, if the employee is incapacitated for work. It is not comparable with periods of short-time working.

The result of a pro rata restriction of the holiday entitlement is also logical against the background that the purpose of the instrument of short-time work is to prevent redundancies. It is appropriate that no holiday entitlement accrues during periods of employment which are temporarily suspended and maintained with the help of social security. This also ensures equal treatment of employees affected differently during and by the pandemic. Of course, periods of non-employment due to Covid-19 are not the responsibility of employees. However, the different stress situations must also be taken into account in this context. In order to secure supply and services of general interest, some employees perform their full workload, while others are currently prevented from doing so - the Federal Agency compensates for this by granting short-time allowance - to this extent it is objectively justified that a holiday entitlement does not arise during such phases of non-use. This ensures equal treatment of the different groups of employees.