Global Compliance Desk – Netherlands
Netherlands: Supreme Court Clarifies Rules on Reduction of Annual Leave Days for Employees on Sick Leave
Recently, the Dutch Supreme Court issued a ruling that clarifies that an employee must expressly and specifically consent to the deduction of annual leave days from the employee’s leave balance in the situation that an employee becomes ill while an annual leave request is already approved. Even if the employee is going on the previously established annual leave while being ill is insufficient for the deduction of the annual leave days.
The Dutch Civil Code states that days (or part of) on which the employee is ill during an approved annual leave do not count as annual leave days unless the employee agrees to this, or it is stipulated by a written agreement that days of illness in a particular year will be considered as annual leave days (up to the maximum of non-statutory vacation days for that particular year).
Principal and Facts of the Case – The case of DAF TRUCKS NV, basically addresses the question of whether an employer (under art. 7:638 paragraph 8 of the Dutch Civil Code) can write off an employee’s annual leave days if the employee, after their annual leave has been applied and approved, becomes ill and subsequently goes on annual leave during the established period with the permission of the company doctor.
The employee was a senior measurement technician at DAF. In mid-December 2017, the employee requested leave for a period from May 13 to June 22, 2018. This leave request was approved on December 14, 2017. On January 29, 2018, the employee reported as unfit for work. This report was (partly) related to a labor dispute. The employee was seen by the company doctor on May 3, 2018, and has determined that the employee is not fit for work for his work or other work in his own or another department or factory. During the consultation hours, the employee confirmed to the company doctor that he still wanted to go on holiday in the period from May 13, 2018, to June 22, 2018.
Shortly after the visit to the company doctor, the employee contacted his supervisor by telephone, stating that he would soon be going to Norway with the camper for a longer period and he asked whether the supervisor was aware of this. The supervisor confirmed this.
Despite the company doctor declaring the employee unfit on May 3, 2018, DAF deducted 29 vacation days. DAF argued, among other things, that under the collective labor agreement, it was authorized to write off annual leave days and that the employee has agreed to write off these annual leave days.
The employee contested and the court found the relevant law on annual leave coinciding with sick leave is not only applicable when an employee falls ill during the holiday but also if they become ill before it starts. The court rejected DAF’s argument about the collective labor agreement, stating it cannot override the relevant law. DAF’s claim that the employee agreed to the deduction was dismissed, emphasizing the need for clear communication. The final judgment ruled DAF couldn’t reasonably assume the employee’s agreement, stressing clarity in communication about the consequences of consenting to annual leave days.
Court Ruling – The Supreme Court ruled that this provision not only applies when an employee becomes ill during an approved annual leave but also when an employee becomes ill after the annual leave request has been approved but before it has started. On this basis, the approved annual leave will only be considered as annual leave if the employee has consented to designate these days during illness as annual leave days (or if this is stipulated by written agreement).
Thus, annual leave days may be deducted from the leave balance only if the employee explicitly agrees to this. The only ‘escape’ that exists is for annual leave days in excess of the statutory minimum leave; for these days it can be agreed in advance in writing that they may be deducted from the leave balance. This written agreement can also be laid down in a collective bargaining agreement, the Dutch Supreme Court stated.
Takeaway – Employers should review employment contracts and annual leave policies to ensure and implement a system for tracking and reminding employees about their accrued annual leave days and expiration periods to avoid disputes and potential legal claims.
