international employment law firm alliance L&E Global

Germany: Previously acquired leave may not be remunerated with reduced pay after a reduction in the part-time quota

From March 2012 to July 2015, the plaintiff worked part-time with 35 hours per week. Since August 2015, the regular weekly working time of the plaintiff, who continues to perform her work five days a week, has been 20 hours. The employment agreement of the parties is governed by the collective agreement for the civil service of the federal states.

In the period from 10 August 2015 to 22 February 2016, the defendant granted the plaintiff 47 working days of leave, each from the period before the reduction of her working hours. The holiday pay was calculated by the defendant on the basis of the current part-time quota with half of the gross pay paid to a full-time employee.

The Federal Labor Court ruled that provisions of the collective agreement which grant an employee a right to continued remuneration during his leave are null and void because of an indirect discrimination against part-time employees, provided that they also calculate the holiday pay of an employee who takes leave after the reduction in his weekly working hours in accordance with the principle of loss of pay in cases where the leave dates from the period before the reduction in the part-time quota.

The holiday pay should therefore not be calculated on the basis of the part-time quota of 50% applicable during the respective holiday period, but on the basis of the weekly working time of 35 hours before the reduction in working hours.