The Federal Labor Court decided in its judgment of December 05.12.2023, 9 (ref. 364 AZR 22/XNUMX) on the calculation of vacation when illness and short-time work overlap. Accordingly, the lost working days are not to be equated with periods of compulsory work when calculating the amount of vacation if the employee falls ill during a period for which short-time work “zero” has been effectively introduced.
1. FACTS
The parties are in dispute over vacation compensation from 2020. The plaintiff was an employee of the defendant (a company locksmith) from May 1, 2018 to January 31, 2021. From March 19, 2020, the plaintiff was unfit for work until December 31, 2020. Due to the corona pandemic, the parties agreed on March 23, 2020 to continue the employment relationship on short-time work from the beginning of April to the end of December 2020. As a result, the weekly working time was 0 hours. The plaintiff demanded compensation for 2020 days of vacation for 15. In his opinion, the periods of his incapacity to work due to illness should be treated as periods of actual work performance when calculating vacation despite short-time work.
The Neumünster labor court dismissed the lawsuit. The Schleswig-Holstein State Labor Court rejected the plaintiff's appeal. The plaintiff's appeal before the Federal Labor Court was also unsuccessful.
2. DECISION
According to the Federal Labor Court, the plaintiff employee is not entitled to compensation for additional vacation days, since the introduction of short-time work results in a new distribution of working hours, which determines the employee's contractual work obligation. This involves a recalculation of the statutory vacation days in the sense § 3 BUrlGafter yourself.
The distribution of working hours changed by short-time work does not change if the employee falls ill during a period for which short-time work was introduced. The employment contractual basis for calculating the duration of the vacation remains unaffected by the illness. This can be derived from the case law of the Court of Justice of the European Union.
According to the Federal Labor Court, a different assessment is not necessary if the inability to work existed before short-time work was introduced. A sick employee is not per se exempt from the labor law consequences of short-time work. If an employee receives sickness benefit of the same amount instead of short-time work benefits due to an illness that occurred before the intended short-time work began, this does not conflict with the effective agreement of short-time work, even if it was concluded “under the proviso that short-time work benefits acc. to. §§ 95 ff. SGB Ill is approved by the employment agency”. The standard only regulates the distribution of responsibility under social insurance law between unemployment and health insurance.
3. CONCLUSION
The decision of the Federal Labor Court is groundbreaking and affects both employees and employers who are faced with “zero” short-time work. Employees are not entitled to claim the lost working days as working time for vacation compensation if they become “zero” sick during short-time work. It should be emphasized at this point that the decision specifically refers to “zero” short-time work and does not include any other short-time work models.
