The BAG, in its ruling of 30.11.2021 (case reference: 9 AZR 225/21), had to make decision about an employee who was working three days a week in sales. In 2020, she was repeatedly put on ‘zero hours short-time working’. In April, May and October she was put on this status continuously and, in November and December, she worked on just five days altogether. That was why her employer was of the opinion that, for 2020, on account of the short-time working her holiday entitlement was only 11 1/2 days instead of the usual 14 days. The employee did not accept this and took legal action.
The BAG ruled that when the employer calculates the reduction they may include all the short-time working days where there was no obligation to work. The working time that was lost because of short-time working agreed by means of an individual contract cannot be equated with times where there is an obligation to work either under national law or EU law.
Outcome: Accordingly, in cases of ‘zero hours short-time working’, a part of an employee’s holiday entitlement can be cut.