Information obligation of the employer about the expiry of holidays

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.

Expiry by operation of law?

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.

Information obligation and burden of proof of the employer

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.

Consequences if the employee is not well informed

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.

Our advice

• Inform your employees in time and precisely over their holiday entitlements.  For instance, at the end of each calendar year, provide an overview of the outstanding statutory holidays that must be taken before 1 July.
• Consult an employment lawyer if you want to cancel unused holidays.

More information?

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: