What's the rest of 20 18 2018
How are old vacation entitlements calculated if I change my working hours?
In 2018 Neumann worked full-time in a five-day week. From 2019 he worked part-time, three days a week. His full-time vacation entitlement is 30 days. That's six weeks.
His employer calculates after the change in weekly working hours: 30 days: 5 days (full-time) × 3 days (part-time). So he determines a vacation entitlement of 18 days for 2019. A cross-check shows that Neumann still has six weeks' annual vacation. So that is correct.
Conversion of old leave to part-time is ineffective
But Neumann also has a remaining vacation entitlement of ten days from 2018, which the boss also quotes. He calculates six days from the old vacation (10 days: 5 × 3).
That is not correct. With the decision of February 10, 2015 (9 AzR 53/14 F), the Federal Labor Court (BAG) changed its previous case law and relied on European law. According to this, part-time employees are ineffective if employers convert full-time vacation entitlements to part-time work. As a result, the vacation is then shortened. A reduction is a disadvantage for part-time employees and is therefore ineffective.
Neumann is therefore entitled to receive his ten days from 2018 in full in 2019. That's ten days from 2018 and 18 days from 2019, for a total of 28 days.
Reduction to half a day
Neumann reduces working hours by half, but continues to work five days a week, so only works half the hours a day. His remaining ten days' leave remains. With the 30 days from 2019, he then has 40 days of vacation. So far that is not a problem.
But what about paying for vacation days? Neumann earned 150 € per working day full-time. Now, with half the working time, he only receives half of the remuneration, i.e. € 75. If the full-time vacation is remunerated as well as the new vacation with € 75 per day, this is a financial devaluation of the vacation.
Old leave is still to be paid as full-time
According to Section 11 of the Federal Vacation Act, vacation pay is based on the average earnings that the employee has received in the thirteen weeks prior to the start of the vacation. So an average has to be calculated. However, this form of calculation leads to the financial devaluation of the vacation.
This is also a disadvantage for part-time workers. The BAG decided on March 20, 2018 (9 AzR 486/17) that the European legal requirements are clear here.
FEDERAL LABOR COURT judgment of March 20, 2018, 9 AZR 486/17
The old vacation came about while still working full-time with a daily income of 150 €. And, if the vacation entitlement arose at this point in time, the entitlement to remuneration also arises at the same time.
For Neumann this means that the vacation from 2019 has to be paid at € 75 per day, but the ten days from 2018 at € 150 per day.
Change from part-time (five-day week) to full-time
Neumann works for the Federal Employment Agency. He is initially employed part-time, but can increase to full-time within the year. After the top-up, he takes vacation, including vacation that arose while working part-time.
As a result, the Federal Agency wants to pay lower remuneration for vacation days from part-time employment. She first paid them in full and then demands parts back.
Vacation is to be paid with full-time remuneration
With its decision of November 20, 2018 (9 AzR 349/18), the BAG interpreted the collective agreement applicable at the Federal Agency. Like the Federal Holiday Act, it is based on the principle of loss of earnings. This principle says that Neumann should not be worse off or better off than he would have been if he had worked.
The employer must then continue to pay the remuneration that the employee is entitled to for the regular working hours that are relevant for him. This principle can only be met if the vacation taken while working full-time is also paid with full-time remuneration.
Change from part-time (e.g. three-day week) to full-time
Here again the European Court of Justice has clarified. With the judgment of 11/11/2015 (C-219/14) the principle was established that the remaining vacation time accumulated in part-time work does not have to be recalculated according to the increased working hours.
For example 4:
As a part-time employee, Neumann has a vacation entitlement of 18 vacation days for three days. He takes five remaining days into full-time employment without converting them. As a result, he previously had almost two weeks vacation with those five days and now just one. Since the remuneration ultimately remains the same, the court did not see any unequal treatment here.
Read our article on the aforementioned judgment of the Federal Labor Court of March 20, 2018
Many cases have been legally clarified as a result of the decisions mentioned. It is doubtful whether these principles can also be found on the wage and salary slips.
As is so often the case here, too: take a close look and, if necessary, seek legal advice for a personal case. That can bring a lot of vacation days or extra pay.
§ 4 TzBfG prohibition of discrimination
§ 4 Prohibition of Discrimination
(1) A part-time employee may not be treated worse than a comparable full-time employee because of part-time work, unless objective reasons justify different treatment. A part-time employee is to be granted remuneration or another divisible monetary benefit at least to the extent that corresponds to the proportion of his working time in the working time of a comparable full-time employee.
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