The Netherlands Update: Jacob and handing in vacation days – An Employment Law Scenario.

“I would like to use the vacation days saved in recent years for a long-term sabbatical, Jacob. I’m ready after all this Covid misery.”

It’s Monday morning, 10:00 a.m. Jacob has just finished a team meeting and is updating his emails. Among the mails is a request from an employee. About 30 years old, small housed, had a lot of trouble working from home. So now I want a sabbatical.

Jacob calls his HR Manager: “Say Sandra, vacation days will expire if they are not taken within six months of the year of accrual?” “Yes , in principle, yes, unless the employee has not had the opportunity to take them in. What’s going on?” Jacob explains that one of the employees talks about ‘saved’ vacation days while the days would have expired according to him. “That would then apply to the legal days, not to the extra-legal days. There is a limitation period of 5 years attached to this. I can remember that our lawyer also said something about this in a webinar about holidays and employees. I’ll give him a call.” “Ha Sandra, tell me. What’s going on,” the lawyer said. Sandra explains the case to him and tells him that Jacob is not willing to grant about 60 days of vacation. “Jacob says, he’s already handed them in, they’ve been dropped.”

Expired vacation days, or not?

“Indeed: statutory holidays will lapse if they are not taken within 6 months of the year in which they were accrued. An important condition is that the employee must have had the opportunity to take them in. This is not the case with long-term and complete incapacity for work, and also not when, for example, the workload does not allow it. But more importantly, can you remember our webinar? In it we explained that as an employer you must inform an employee individually that his or her vacation days are in danger of canceling and you must point out (and give him or her the opportunity) to take the days. Also, you need to make it clear that if the days are not recorded in time, they will expire without any compensation. This is sometimes forgotten. Is not in the law. Follows from European case-law. But it’s getting picked up more and more by employee lawyers, so you have to be aware of it.” “I don’t think we’ve ever told our employees anything about taking vacation days. They coordinate their holidays with each other and then such an application follows through our ESS.” “OK, in that case I fear that this employee does have a point. You can of course try to make an appointment with him about this sabbatical. You don’t necessarily have to agree to such a prolonged absence. In any case, you must give an employee the opportunity to take a week’s holiday twice during the year. This ‘sabbatical’ would entail an absence of three consecutive months. Take a look at the impact this has on the company. So you do have some room for negotiation. But for the future, I recommend that you steer on an individual level on taking vacation days. Can also be automated via your ESS. And otherwise you have to do it yourself, I’m afraid…”

“Thanks!”

 Tips

• Statutory holidays will lapse if they are not taken no later than 6 months after the year in which they are accrued. Exceptions: 1) when the employee was not able to take them in, for example due to complete and long-term incapacity for work or due to high work pressure. 2) if the employer has not fully and individually informed the employee about the impending expiry of holidays.
• Non-statutory holidays are time-barred for 5 years after the year in which they were accrued. Limitation period can be ‘stalled’. That is, the employee communicates that he wants to keep the days. If he does so, the limitation period begins

By Hocker, Netherlands, a Transatlantic Law International Affiliated Firm. 

For further information or for any assistance please contact netherlands@transatlanticlaw.com

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