Netherlands Update: Loss of vacation rights, also if the employee is incapacitated due to sickness

Recently, on 15 December 2021, the District Court of The Hague ruled on a sick employee who took the position that he was not reasonably able to take holidays as a result of his persistent incapacity for work. Now that the employer had not imposed any reintegration obligations, the employee felt that he should invoke the exception rule and the holiday had not expired. The employee claimed payment of the holiday hours before the District Court. The employment contract had meanwhile ended as the employee had reached the state pension age. For the holiday that had already been taken, the employee invoked error because he was not aware of the exception rule.

The employer argued that the holiday hours had expired and that there could be no question of error because the rules for taking and forfeiting holidays had been included in the Employee Handbook. The employee could have taken note of this in advance and was expected to be aware of these rules.

The District Court ruled in favour of the employer, whom we assisted in these proceedings.

In this ruling, the District Court examines the exception rule and explains how the criterion ‘has not been reasonably able to take a holiday‘ is interpreted based on the legislative history.

When do holidays expire under Dutch civil law and when do not?

Article 7:640a of the Dutch Civil Code provides that entitlement to statutory holidays lapses six months after the last day of the calendar year in which the entitlement was acquired unless the employee has not been reasonably able to take holiday up to that point. This exception only applies in limited cases and the burden of proof rests on the employee. This does not concern the extra-statutory holiday entitlements, which have a longer expiry period of five years.

Case

On October 4, 2018, the employee became incapacitated for work and the employment relationship ended on December 1, 2020, as the employee reached his state pension age. The employer has drawn up a final statement, but according to the employee he was still entitled to payment of 148 statutory holiday hours from 2019. The employer did not agree with this and stated that the statutory holiday hours had been taken by the employee and, if not, the remainder as of 1 July 2020 had lapsed.

Although the employee had taken 133.20 statutory holiday hours before 1 July 2020, he invoked error because he was not aware of the exception in Article 7:640a of the Dutch Civil Code. He would not have been aware until later that vacation hours do not expire if the employee has not been reasonably able to take out holiday. He stated that he had not enjoyed his holiday due to his persistent health problems and claimed an amount in money for the taken and untaken holiday hours.

How is the exception rule interpreted by the District Court?

In this judgment, the District Court first explains the reason for which the employee’s claim for error is unsuccessful. Certainly, the exception mentioned by the law was also clearly stated in the Employee Handbook. Insofar as there is error, this is the fault of the employee himself. The employee should have been expected to look in the Employee Handbook. No compensation is, therefore, due for the holiday hours already taken. The Subdistrict Court further ruled that for an assessment of the exception rule it follows from the legislative history that the employee must not reasonably have been able to take his statutory holidays during the total period (accrual year + six months expiry period).

The employee built his case mainly on the fact that in any event, he fell under the exception rule of Article 7:640a of the Dutch Civil Code because no reintegration obligations had been imposed. The judge found that too short-sighted. In the opinion of the Subdistrict Court, it is not so much a question of whether reintegration obligations have been imposed, but whether the employee can be considered capable of reintegration.

Although this employee had had several medical interventions in the period from 1 January 2019 to 1 July 2020, it did not appear that over the entire period up to the time of expiry, the employee was not reasonably able to take his holiday. The written feedback from the company doctor contained insufficient information about the reintegration so that the conclusion was not drawn that there were no reintegration options. It was up to the employee to substantiate and prove his statements. The employee has failed to do so and for that reason cannot claim monetary compensation for the expired statutory holidays. The employee’s appeal to the exception rule was rejected.

Advice

It is important to properly describe the employment conditions, including entitlement to holiday (including in the event of illness) and the expiry period, to avoid these kinds of risks. It was important to the District Court that the employee was properly informed by the employer and that the regulations regarding the cancellation of holiday hours were included in the Employee Handbook.

Court of The Hague – December 15, 2021
Case number 9284383
Published in AR updates: AR-2021-1603

By Dammers Hock Advocaten, Netherlands, a Transatlantic Law International Affiliated Firm. 

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

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