Düsseldorf Regional Labor Court: Employers can reduce vacation time for “Kurzarbeit Null” employees

by ZELLER & SEYFERT

A recent ruling from the Düsseldorf Regional Labor Court 6th Chamber and the Essen Labor Court has provided a precedent for some employees assigned to Kurzarbeit, or short-time (reduced) work, and their entitlement to vacation allowance due to the pandemic.

Her vacation was reduced due to Kurzarbeit Null

The plaintiff worked at a bakery part-time 3 days per week since 2011. In her contract, she is given 28 “Werktage” (days that are not Sundays or public holidays) days off, which in her case translated to 14 Arbeitstage (days at work) days off.

Due to the coronavirus pandemic, she was put on Kurzarbeit from April to December in the year 2020, and in the entire months of June, July and October the reported working hours were zero, which is referred to as Kurzarbeit Null.

Considering the months recorded as Kurzarbeit Null, the employer recalculated the vacation days and granted 11.5 work days off in August and September, of which the employee was not happy about.

The employee filed a lawsuit against the employer claiming she lost 2.5 vacation days in 2020. She claimed that Kurzarbeit is not the same as vacation, because she must report to the employer on the days that she is scheduled to work, regardless if there are actual working hours available or not. Furthermore, she was unable to schedule extended holidays because the employer could call her in to work within a day’s notice. Additionally, she complained that the Kurzarbeit status was not her fault and didn’t want to be penalized due to the pandemic.

Court says no work equals no play

The court ruled in favor of the employer, citing that the reduction of vacation time in respect to Kurzarbeit Null is within the law according to §3 of the Federal Vacation Act (Bundesurlaubsgesetz, BUrlG). For every full month of Kurzarbeit Null, the employee’s vacation entitlement is reduced by 1/12. According to the calculation of 3 months of Kurzarbeit Null in the year 2020, the actual reduction should have been 3.5 days, and so the employee actually retained 1 vacation day more than legally required.

Kurzarbeit workers are treated the same as temporary part-time workers in regards to vacation allowance. Since there is no better German law covering this situation, the court defers to EU law on minimum holiday entitlements (Art. 7 (1) Directive 2003/88/EC).

The court supports the view that vacation days are given as a respite for the days worked. Additionally, the Kurzarbeit Null status due to the pandemic is not the same as the incapacity to work, such as due to illness. The fact that the coronavirus was the cause for the loss of working days does not help her situation since there is no law in this regard.

If you or your company has a similar Employment Law case, consider speaking with one of our specialized and experienced Employment Law attorneys.German Employment Law expert Dr. Christian Zeller has many years of experience in dealing with such matters and would gladly offer a free initial ‘Corona consultancy’, to discuss the finer points of your case.
Feel free to reach us by our contact form, directly via email at mail@zellerseyfert.com or by telephone (+49 (0) 30-40 36 785-80)

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