An annually recurring theme is the taking and (possible) expiry of holidays. Below you can read when holidays not taken will expire – and when not. The moral of the story: employer, be active!
The right to vacation
Holiday means: exemption from the obligation to perform work. Vacation is intended to rest and recover from work (the ‘recovery function’). An employee is entitled to a minimum number of statutory vacation days of four times the agreed working hours per week. By way of illustration: an employee with a full-time employment contract of 40 hours per week is entitled to at least 20 vacation days per year. Holidays that exceed the statutory number of holidays are the extra holidays that are referred to as ‘extra-statutory holidays’.
Forfeiture of statutory holidays
The statutory holidays are subject to an expiry period of six months after the end of the year in which they were accrued. This means that the statutory holidays accrued in 2021 will expire on 1 July 2022.
However, there is no question of forfeiture of statutory vacation days if an employee was not reasonably able to take the vacation days. This applies, for example, to an employee who is completely incapacitated for work, who is not capable of any form of reintegration, but also applies if the employer has not informed the employee, not correctly or not fully about taking the holidays and the consequences or not recording .
Case law from the Court of Justice from 2018 shows that an employer has a far-reaching obligation to ensure that the employee is actually able to take his annual statutory leave and it is the employer who must ‘demonstrate that he has taken all due care has acted so that the employee is actually able to take paid annual leave’. The notification must be made accurately and in a timely manner, and formally if necessary, and the employee must be made aware that the holidays will otherwise expire. If the employer cannot demonstrate this, the vacation days will not expire.
This doctrine of the Court of Justice is now also applied in Dutch case law. The Court of Appeal in The Hague recently ruled that a significant number of unused vacation days of an employee had not lapsed because it had not been established that the employer had complied with its duty of care and information with regard to taking these days. It was not clear how concretely and actively the employer had ensured that the employee had actually had the opportunity to take his vacation days, whether the employer had formally instigated the employee to do so if necessary, and whether the employer had informed the employee in a timely manner about the expiry of his leave. vacation days.
Extra-Statutory Holidays
The extra-statutory holidays are extra holidays that can be granted to employees. This can be done, for example, in an employment contract, but also on the basis of a collective labor agreement (CLA). A statutory limitation period of five years applies to holidays in excess of the statutory entitlement. Unlike the expiry period of statutory vacation days, the limitation period for extra-statutory vacation days can be ‘interrupted’ (broken down, for example by a written notification from the employee).
Notify employees!
The conclusion is that it is important for employers to proactively and timely give employees the opportunity to take the accrued statutory holidays and to inform them about the possible expiry of the holidays if they do not take these days. This prevents these vacation days from being taken at a later date or having to be paid out at the end of the employment contract.
Would you like to know more about the expiry or expiration of holidays? Or do you want help with preparing an information document for or a message to your employees? We are happy to provide you with advice – also on other employment law topics!
For further information, please contact the Employment Law department:
Brigit van de Ven-Meier , moc.netacovdaenotselim@nevednav , +31 6 23 93 65 79
Caroline van der Zwet , moc.netacovdaenotselim@tewzrednav , +31 6 29 59 71 64
Frouke Vlaskamp , moc.netacovdaenotselim@pmaksalv , +31 6 50 60 23 15
Caroline Huizinga , moc.netacovdaenotselim@agniziuh , +31 6 30 62 82 82
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