Netherlands Update, My Employee Wants to Take a Sabbatical. What Should I Pay Attention To?

Since 1 July, our colleague, Manon Vermeulen, has left for South America for 4.5 months. This blog is therefore about the employment law aspects of a sabbatical: what should employers take into account when assessing a request to take a sabbatical? Also read five useful tips in this blog!

Is an employee entitled to a sabbatical?

A ‘sabbatical’ is not a defined concept in law. It is a term used for a long period of (unpaid) leave. There is no legal right to a sabbatical. However, agreements may have been made about this in a collective labor agreement or employment contract. There are also employers who offer the possibility of a sabbatical as a condition of employment and have policies in place for this. For example, employees of ABN AMRO Bank can take a partially paid sabbatical of up to six months.

A request for a sabbatical: refuse or approve?

An employee’s request to take a sabbatical must be handled within the framework of good employment practices (a weighing of interests) and in accordance with any agreements in the collective labor agreement, employment contract and/or internal policy. Based on this framework, an employer can refuse or (partially) approve a request. Once approved, a request can only be withdrawn or amended under special circumstances. An employer would be wise to enter into a timely and proactive dialogue with an employee in order to find a suitable solution, to carefully weigh up interests and to explain this if this leads to the refusal of the request.

The approval of one request does not necessarily mean that an employer must approve all requests for a sabbatical. The basic principle is that similar cases should be treated equally. However, seemingly identical cases are not easily judged to be equal cases in the legal sense.

Easyjet had to approve ‘career break’ according to the judge

An Easyjet employee asked for a three-month career break in good time on the basis of the Easyjet collective labor agreement. The collective labor agreement provides for a right to unpaid leave in the form of a ‘career break’ within a certain period (the winter season). The collective labor agreement also states: “A request for non-activity is subject exclusively to the judgment and decision of the employer“. Easyjet rejects the employee’s request.

The court assessed the question of whether Easyjet behaved as a good employer by rejecting the request by means of a weighing of interests. The balance of interests is in favour of the employee. The court considered that the employee’s interest in keeping her job and following the exchange programme was evident. Furthermore, there was no question of a precedent feared by the employer because this was a unique situation in which a mistake had also been made with regard to the employee’s leave days. Finally, the employer has not sufficiently demonstrated that it would get into trouble as a result of the ‘career break’.

Points of attention for employers: 5 tips!

1. No legal right, but a balancing of interests

Unless otherwise stipulated in a collective labour agreement or employment contract, a sabbatical is not a legal right for employees. However, this does not mean that a request can always be rejected, as the above-mentioned judgment shows. Therefore, discuss the request with the employee and substantiate the decision whether or not to grant the request.

2. Discuss the consequences with the employee

If the employee takes unpaid leave during the sabbatical, this will have consequences for the employee. For example, the accrual of vacation days stops and the employer is no longer obliged to continue to pay the pension. In addition, it can have consequences for benefits, allowances, targets and bonuses, among other things.

3. Make clear agreements in advance and record them in writing

Make clear agreements with the employee prior to (the approval of) the sabbatical. Some topics to discuss and agree on are:

• The duration and period of the sabbatical, possibly in combination with the taking of vacation days.
• Consequences for the employee, especially in the case of unpaid leave.
• The handover of work before departure.
• Return to work in various situations, such as: planned, early or in case of illness.
• The employer’s part of the pension to prevent a pension shortfall. Adjusting targets if necessary.
• What to do in case of a negative travel advice from the government.

4. Provide timely handover and replacement (if necessary)

If necessary, make sure that a replacement is found in time who can take over the employee’s work. This can be an internal employee(s), but a new (temporary) employee/interim can also be recruited. Furthermore, start the transfer of work in good time.

5. Think about policies

Shaping internal policies with frameworks and conditions can be useful. This includes the conditions under which an employee can apply for a sabbatical, for how long and/or during which period of a calendar year and the application procedure. A clear policy gives employees guidelines and prevents possible (lengthy) discussions.

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

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

Disclaimer: Transatlantic Law International Limited is a UK registered limited liability company providing international business and legal solutions through its own resources and the expertise of over 105 affiliated independent law firms in over 95 countries worldwide. This article is for background information only and provided in the context of the applicable law when published and does not constitute legal advice and cannot be relied on as such for any matter. Legal advice may be provided subject to the retention of Transatlantic Law International Limited’s services and its governing terms and conditions of service. Transatlantic Law International Limited, based at 84 Brook Street, London W1K 5EH, United Kingdom, is registered with Companies House, Reg Nr. 361484, with its registered address at 83 Cambridge Street, London SW1V 4PS, United Kingdom.