Publication date: 5 March 2019
Until now, statutory holidays lapsed six months after the calendar year in which they were accrued. Now, this is only the case if the employer has not informed the employee about his holidays in a timely and precise manner. If this does not happen or the employer cannot prove having provided this information, the holidays do not lapse.
In a recent ruling, the European Court of Justice has answered questions about the expiry of statutory holidays. This has changed the role of the employer. What is the situation?
Employees have a statutory entitlement to a minimum number of holidays. This minimum is equal to four times the number of their weekly working hours. Employees must be able to take these statutory holiday every year. In addition, employees may be entitled to holidays in excess of the statutory entitlement. This depends on what has been agreed in a collective agreement or employment contract.
Under Dutch law, statutory holidays lapse six months after the calendar year in which they have been accrued. Does this happen automatically? Not anymore, because this is what the European Court of Justice is changing. From now on the employer has an information obligation.
The holidays shall only lapse if the employer has been given the opportunity to take the holidays. The condition for this is that the employee knows how many days off he has. This means, the employer must regularly provide the employee with information about his holidays and it is not sufficient to do so only with a view to a settlement at the end of the employment.
The employer has a duty of proof to demonstrate that the employee was informed in time. In this case, the employer is not required to oblige employees to take holidays, but only to give them the opportunity to do so. If the employee does not make use of the opportunity, the holidays will lapse, unless the employee can prove that he wasn’t able to take the holidays, for instance due to sickness.
If the employee is not informed, or not completely or too late informed about his holiday entitlements, these shall thus not lapse. Even if the statutory expiry date has expired. The employee must have actually been given the opportunity to exercise his holiday rights. If this is not the case, the judge can oblige the employer to give the employee the opportunity to take the days not taken.
This means that statutory holidays only lapse if the employer has informed the employee in a timely and correct manner. This regulation does not (yet) apply to holidays in excess to the statutory holidays.
Would you like to learn more about your employees’ entitlement to holidays and their duties when taking holidays? Or do you have any other questions about employment law? Please contact us:
Employees cannot work in the shop or the company. Can you, as an employer, oblige them to take their holidays?read on
All employers will be confronted with sickness absenteeism of employees at some stage. Under Dutch law, employees accrue holidays during sickness absence. However, in certain cases, (part of) the days the employees are absent due to illness can be deducted from holiday.read on
In the last issue of Stare Decisis, Priscilla de Leede of Russell Advocaten, Mary Edenfield of Mateer Harbert and Ed Belam of Marriott Harrison discuss the most important topics to include in your employment contracts regarding the termination of the contract. There are some important differences to take into account!read on
A sick employee may not be dismissed. However, an employee who knows of imminent dismissal, cannot avoid this by reporting sick. But when does the employee know that this is the case? This question was central to the court case concerning the dismissal of a CFO of Volksbank.read on
If your employee reports sick, this may raise many difficult questions. What are your reintegration obligations during the sick leave period? What are you allowed to record about your sick employee with regard to the privacy legislation? We answered these and other questions during a webinar. Watch the video!read on
Is there already a works council in your company? Are you a member of your company’s works council? What are the advantages of having a works council in your company? Jan Dop and Priscilla C.X. de Leede explain the role of the works council and give an overview of the works council’s most important rights.read on