Sometimes, the saying »iudex non calculat« is not true and lawyers also have to crunch numbers, such as when it comes to vacation law. This article explains how vacation is calculated when employees join or leave during the year, when they change from full-time to part-time and vice versa, and when working hours are spread out in a non-regular way.
Joining and leaving during the year
Here is a relatively common special configuration to begin with, namely the calculation of annual leave in the event of an employee joining or leaving during the year. Here, Section 5 of the Federal Leave Act (BUrlG) contains the following clear provisions:
If an employee enters into an employment relationship up to and including 30 June of a year, they receive their full vacation entitlement after the end of the six-month waiting period.
If, on the other hand, the employment relationship begins on 1 July or later, the employee only receives their annual leave entitlement proportionately, namely one twelfth for each full month of the employment relationship.
If the employment relationship ends in the year of joining before the waiting period has been fulfilled, the rule of twelfths also applies.
The same applies in the event of leaving after the waiting period was completed in the first half of a calendar year.
If, on the other hand, the employee leaves in the second half of the calendar year after having completed the waiting period, they are entitled to the full annual vacation.
Practical tip: For vacation entitlements that exceed the statutory minimum vacation, other arrangements may be contractually agreed; for example, it may be stipulated that the vacation entitlement is to be reduced proportionately if the employee leaves the company after 30 June of a year, provided that the statutory minimum vacation entitlement is not fallen short of.
Change from full time to part time and vice versa
These two configurations are a bit more complicated and the law stipulates nothing for these. It is a question of what happens to the holiday entitlement that existed before the change in working hours but has not yet been taken.
It used to be common practice, which was approved by the Federal Labor Court (BAG), to convert the vacation days in the ratio of the new to the old number of working days per week in order to guarantee an equal number of weeks off for vacation. For example, if a full-time employee changed from a five-day week on July 1 of a year to a part-time position with only two working days per week and had not yet taken any vacation up to that date, their statutory vacation entitlement for the first half of the year was reduced from ten days (= two weeks in the case of a five-day week) to four days (= two weeks in the case of a two-day week).
The European Court of Justice (ECJ), however, thwarted this logical methodology and decided, with regard to the change from full-time to part-time work, that the extent of already accrued vacation entitlements should not be adjusted in the event of a change in the volume of employment (decision of June 13, 2013 - Ref. C-415/12). According to the ECJ and now also the BAG (ruling of February 10, 2015 - Ref. 9 AZR 53/14), a retroactive quota of the vacation entitlement corresponding to the reduced working hours may therefore no longer be applied. Rather, this should be considered in sections. In the above example, the employee would keep the ten vacation days from the first half of the year (= five (!) weeks with a two-day week). In addition, there would be a further four days' vacation for the second half of the year.
The ECJ later extended its jurisdiction, initially developed with regard to the reduction of working days, to the increase in working days (ruling of November 11, 2015 - Ref. C-219/14): An employee who worked two days a week up to 30 June is entitled to four days' vacation for the first half of the year. If this employee now changes to a five-day week from July 1, they are entitled to ten additional days of vacation for the second half of the year. According to the jurisdiction of the European Court of Justice, there is no need to adjust the four days of leave from part-time work to the five-day week, even if this means that four days of leave are now only worth less than one week of leave instead of the previous two weeks.
Practical tip: In the event of an impending reduction in the number of working days per week, vacation entitlements should, if possible, be granted during the full-time phase in order to prevent »multiplication« of the vacation entitlement. With regard to the extra statutory additional leave, a pro rata reduction can be contractually regulated in accordance with the old BAG jurisdiction.
Irregular number of weekly working days
It is also conceivable that working time is spread out in an irregular manner. In this case, calculating the vacation entitlement is even more complex, as a new reference period has to be determined first, which should be used instead of a week.
An irregular distribution of working time exists, for example, if an employee works first on three, then on four and then on five days a week on a rolling basis. In this case, the reference period would be three weeks, as the worker works on a total of twelve days (= 3 + 4 + 5) at the same rate over this period. The employee's actual working days in the reference period must then be put into relation to the maximum number of working days that can be considered in the reference period.
In this case, the statutory vacation entitlement would be calculated as follows for a five-day week at the company:
20 (statutory vacation entitlement): 15 (maximum conceivable working days in the reference period) x 12 (employee's actual working days in the reference period) = 16
Practical tip: If no periodically recurring system can be identified, a year is used as the reference period. The BAG assumes an obligation to work 260 days per year with a five-day week and 312 days per year with a six-day week. The employee's actual working days must be in relation to the number of days using the above formula.
Footnote: The second part of this article deals with other special configurations (including retirement and short-time work).