The following facts were heard before the Düsseldorf Regional Labor Court:

In one company, short-time work was repeatedly zero from April 1st, 2020 as a result of the corona pandemic. From June to October 2020 there was continuous short-time work. In August and September 2020, the employer had granted an employee a total of 11.5 working days of vacation.

The employee is of the opinion that the short-time work has no influence on her holiday entitlements. Short-time work due to the economy does not take place at the request of the employee, but in the interest of the employer. Short-time work is not free time either. She is subject to reporting requirements during short-time work. The employer can also end the short-time work prematurely at short notice, which is why it is not possible to plan the free time. She therefore requested a declaration that she was entitled to 14 working days' full holiday for 2020, ie 2.5 working days left.

The employer opposed this. If there is no obligation to work during short-time work, no holiday entitlements would arise. The employee's holiday entitlement for 2020 has therefore already been fully met.

acc. § 2 BurlG Employees have a statutory right to vacation leave. The minimum number of vacation days depends on § 3 BUrlG. According to this, an employee with a five-day week has an annual minimum vacation entitlement of 20 working days.

The purpose of the regulation is to allow employees to relax.

In the opinion of the LAG, this purpose is also achieved if an employee is on zero short-time work. Because during the period of zero short-time work, employees are not obliged to perform the work that is fundamentally due. Accordingly, it is irrelevant for the recovery of the employees whether they have been granted vacation or are on short-time work.

Special agreements can provide for the employer to end short-time work prematurely. However, such agreements usually contain notice periods. The situation is different than, for example, in the case of a revocable exemption.

Likewise, any reporting obligations of the employee to the employer or the Federal Employment Agency - e.g. about taking up a secondary job - do not justify a need for recreation. Because they are not noticeably significant. Even if this were the case, the need for rest would not result from the work performance, but from the employee's social security obligations.

That Federal Labor Court (BAG) has decided that the holiday entitlement of employees is not reduced for the period in which they are due to a invalid termination did not work to have.

The decisive difference to the cases of short-time work is that the performance obligations of the contracting parties have been suspended for the period of short-time work. In the case of an ineffective termination, however, the employer is in arrears with the acceptance of the service owed by the employee.

Conclusion

The holiday entitlement of employees is reduced by one twelfth for each full month of zero short-time work, without the need for a corresponding agreement. The regional labor court has allowed the appeal to the BAG. However, in view of older case law, it can be assumed that this will follow the decision of the Düsseldorf judges.

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