In a new decision by the Düsseldorf Regional Labor Court (judgment of March 12, 2021 - 6 Sa 824/20), the judgments of the European Court of Justice (ECJ, judgments of November 8, 2012, C-229 /11, C-230/11) confirms that for periods in which employees have not worked continuously due to "zero short-time work", they do not acquire any new holiday entitlements.
The LAG Düsseldorf ruled that the employee had not acquired any holiday entitlements in accordance with Section 3 BurlG for the period in which she was continuously on "zero short-time work". This means that she is only entitled to a proportion of the annual leave for 2020. The court went on to say that the employer is entitled to reduce the total holiday entitlement by 1/12 for each full month of "zero short-time work".
To justify this, the LAG essentially stated that during short-time work the short-time worker had to be treated like a temporary part-time employee. In this respect, it is recognized that their holiday entitlement is to be reduced proportionately to the number of working days per week, based on the statutory holiday entitlement of 24 days with 6 working days per week.
Although the decision is not surprising in view of the already known ECJ decisions, it also confirms their validity for the short-time work caused by the pandemic and at the same time represents a very important decision on this question.
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