No proportionate reduction in vacation when switching to part-time work with fewer working days per week. BAG 10.02.2015 - 9 AZR 53/14

The plaintiff, whose employment relationship is governed by the collective agreement for the public sector (TVöD), switched to a part-time position from July 15, 2010 and only worked four days a week instead of the previous five. Up to this point in 2010, the plaintiff had not yet taken any vacation. The defendant considered it appropriate to reduce the 30 days of vacation resulting from the collective agreement for a five-day week to 24 days of vacation for a four-day week. The plaintiff did not consider a proportionate reduction of his vacation entitlement for the period of his full-time employment until July 15, 2010 to be permissible. For the first half of the year, the plaintiff demanded 15 vacation days (i.e. 30 divided by two); for the second half, he demanded only 12 vacation days, taking into account his part-time employment. He therefore demanded a total of 27 vacation days.

The BAG now ruled in favor of the plaintiff and granted him the three additional vacation days. It is true that Section 26 (1) TVöD states that the vacation leave that applies to a five-day week should be reduced if the weekly working time is spread over fewer than five days. However, if the leave earned during full-time employment is reduced, this constitutes a breach of the prohibition of discrimination against part-time employees. § Section 26 (1) TVöD is ineffective in this respect.