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Problems of holiday calculation when changing working days

The Federal Labour Court of Germany (Bundesarbeitsgericht) ruled on 24 February 2017 (docket number 9 AZR 7/16)  how to calculate  annual  holiday when an employee changes from a part-time to a full-time job.

Calculating the number of days’ holiday after an increase or decrease in working days is one of the most complicated topics in German vacation law. In general two situations are possible:

 

  • Reduction of the weekly work days; or
  • Increase of the weekly work days.

 

Both are problematic. If there is a reduction or an increase just in the daily working hours, then – under German law, which calculates the vacation in days – the number of days’ holiday remains the same.

Within these two scenarios two options are possible:

 

  • The employee already took all of the holiday; or
  • Some holiday is left over.

 

Both the Federal Labour Court of Germany and the European Court of Justice emphasize that the vacation has to be calculated separately for full- and part-time periods. During part-time work the vacation is reduced pro rata temporis. There will never be a reduction or increase in already accrued leave.

The following principles apply in the case of leave which has not yet been claimed: If an employee works for 6 months at 3 days a week and then changes to 5 days per week, and the annual holiday for full-time work is 30 days, then he will get 10 days plus 15 days for the whole year. The same happens if he previously worked 5 days a week and changed to 3 days a week. This leads to the fact that in the second case the time off work is longer than in the first case (more than eight weeks compared to five weeks as the week is now shorter), but this is expressly accepted by the jurisprudence.

The Federal Labor Court has now decided a case where the employee had already taken the entire leave before the change in working days. Here the employee worked 4 days per week for 8 months before she switched to full-time. Her annual vacation was 30 days for full-time work. During her part-time working period she took the entire annual leave of 24 days (30 x 4/5). After the change she claimed a further 2 days leave for the full time period. This was rightly denied by the court, as the entire annual leave had already been taken. Additional holidays are therefore not to be granted.

A calculation with respect to the individual time sections is only to be carried out if the holiday has not yet been claimed. The decisive factor is always the time of the claim. Conversely, this also means that a change from full-time to part-time does not compensate for excessive leave. As a result, it produces fair and accurate results, provided caution is taken in the calculation.