Number of vacation days given an increase in working hours

ECJ, judgment dated 11.11.2015, C-219/14

An increase in an employee’s working hours does not result in the need for retrospective re-calculation of the previously acquired vacation entitlement. Nevertheless, post calculation must be made for the period during which working hours were increased.

The underlying facts of the decision are straightforward:

The plaintiff had been employed by the defendant, an English Limited Company, since June 15, 2009 on the basis of an employment contract that provided for working hours and days that differed from week to week. Her vacation entitlement was 5.6 weeks per year. In July 2012, the plaintiff took seven days paid vacation. She had previously worked one day per week. With effect from August 2012, her weekly working hours increased to 41.1. An application for vacation, submitted by the plaintiff in November 2012, was rejected by the defendant with the comment that the plaintiff’s vacation entitlement had already been (more than) used up by the vacation days granted in July 2012. After leaving the company on May 28, 2013, the plaintiff demanded financial compensation for vacation not taken. She took the view that, in the event of an increase in working hours, vacation accumulated and taken must be retrospectively “corrected” to conform to the increased working hours and not to the working hours applicable at the time of taking the vacation.

No retrospective “upgrading” of the vacation entitlement for the period before the increase in working hours

The ECJ did not agree with this argumentation and established that EU law does not require post calculation of claims to paid annual vacation – already acquired and possibly already taken – on the basis of the new (increased) working hours in the event of an increase in working hours during the current vacation year. On the contrary, the effect of the increase in working hours as from implementation is such that the vacation entitlement for this – and only this – period has to be post calculated.

Separate consideration of the respective Periods

In this respect, both periods must be considered separately. In terms of the case at hand, this meant that the plaintiff was no longer entitled to vacation for the period prior to the increase, as its scope was to be calculated on the basis of the working hours applicable at the time the vacation was granted. Under this ruling, the plaintiff even received one more day of vacation than she was entitled to. However, this had no effect on the vacation entitlement for the period from the increase up until ending of the employment relationship. During this period, the plaintiff acquired the annual vacation of a full-time employee – pro-rata temporis.

Number of vacation days acquired is retained

With reference to its case law on the lack of any effect of the reduction in working hours on the vacation entitlement acquired during preceding full-time employment, the ECJ again emphasized that the taking of annual vacation later than the period in which the claims were created, is in no way related to the hours worked during this later period. Consequently, the vacation entitlement must be calculated separately for each time period. Put precisely therefore, no post but rather re-calculation even for the period after an increase in working hours.

This is made clear by an example:

Given a minimum vacation entitlement of 24 days for a six-day week, an employee working two days per week acquires a vacation entitlement of four days in six months. If he increases the working hours to six days per week in the next six months, a further twelve days vacation are acquired.

In terms of the total number of vacation days, the sequence in which the employee works part-time or full-time is immaterial.

Summary

The ECJ is continuing its previous case law, according to which the existence of vacation entitlements acquired is independent of any change in the employee’s working hours. The employee acquires his vacation entitlements according to the scope of the time worked by him in specific time periods. These are retained in the form of a fixed number of vacation days. The employee’s working hours at the time of taking the entitlement are immaterial.