Calculation of vacation entitlement in the event of an increase in working hours, ECJ 11.11.2015 - C-219/14

If the vacation acquired during part-time employment is taken during full-time employment, the question arises as to whether the vacation days must be adjusted in line with the new increased working hours. This consideration arises because fewer vacation weeks are possible with the same number of vacation days during full-time employment.

Let's assume the employee works two days a week and has an annual leave entitlement of six weeks. With a two-day week, this would correspond to 12 days of vacation. If this employee now works five days a week from the second half of the year, she will only have two weeks and two days' leave with 12 days' leave. If the 12 days' annual leave were to be adjusted to a five-day week, she would have to take 30 days' leave a year to achieve the six weeks' annual leave. In the Greenfield case, the ECJ ruled on whether this adjustment to leave would have to be made in favor of employees if working hours were increased.

According to the ECJ, no adjustment of vacation days can be demanded for vacation days accrued during part-time work. A recalculation can only be made for the period in which the employee is already working full-time. The remaining leave from the part-time period remains the same, even if it is only taken during full-time employment.

According to the above example, this means that in the first half of the year there is a leave entitlement of six days (12 days annual leave from part-time divided by two) and in the second half of the year 15 days (30 days annual leave from full-time divided by two). There is no adjustment of the six vacation days to the five-day week, even if this means that six vacation days result in only one week and one day of vacation instead of the previous three weeks.

The BAG came to the same decision in the opposite case (see Homepage Arbeitsrecht Aktuell BAG 10.02.2015). Full-time and part-time vacation days must be calculated separately. There is no adjustment to the current new working hours. Therefore, vacation days may not be reduced when changing from full-time to part-time, even if the number of vacation weeks increases.

In summary, it can be said that when changing from part-time to full-time employment, the individual vacation days of the remaining vacation from the part-time employment count, regardless of how many weeks this results in. The remaining leave accumulated from part-time work does not have to be adjusted according to the new working hours in order to arrive at the same number of weeks that would have resulted from part-time work. Otherwise, the employer would have to pay four additional days of leave to an employee previously employed for one day per week in a five-day week in order for them to have one week of leave. The employer would then have to more than double the vacation pay.