Netherlands Update: A Sick Employee During the Collective Company Closure, What About the Holidays?

With summer approaching, many employees plan their holidays. During this period, some employers opt for a fixed, collective holiday period during which the company is closed and employees are obliged to take holidays. This is called a collective company closure. In this blog, I will address the question of what happens to the vacation days of a sick employee during a collective company closure.

Determining vacation

The main rule is that holidays are determined on the basis of the employee’s wishes. Article 7:638(2) of the Dutch Civil Code makes it possible to deviate from the general rule: employer and employee can agree in writing that holidays in a predetermined period – for example in the summer or around Christmas – must be taken compulsorily.

Different rules apply to sick employees. The main rule here is that a sick day is not a vacation day. There are two exceptions to this in Article 7:638 paragraph 8 of the Dutch Civil Code:

• In ‘an appropriate case’, deviating agreements can be made in writing with the sick employee. This means that when a sick employee wants to go on holiday, it can be agreed that the holidays will be deducted from the statutory and non-statutory part of the holiday balance.
• In addition, the parties can agree in writing by individual or collective agreement that certain sick days still count as holidays. However, this possibility only applies to holidays in excess of the statutory statutory entitlement and may therefore not relate to the statutory holidays (four times the agreed working hours per week).

Recent ruling

In a recent judgment of the Zeeland-West-Brabant District Court, the question arose whether an employer was allowed to write off holidays in the case of a sick employee during the annually recurring collective company closures.

What was going on?

An employee works as a production worker and becomes incapacitated for work for a long time. After two years of illness, the parties terminate the employment contract by mutual consent. It is agreed that the employer will pay out the outstanding vacation days. Then a discussion arises about the number of outstanding vacation days.

During the period of illness, the employer deducts the annual collective company closures, consisting of a three-week summer closure and a one-week closure around the holidays, from the employee’s holiday balance. The employee did not agree with this and went to court. He states that he has never agreed in writing to the debiting of his vacation days during his illness and should therefore be paid these vacation days. The employer is of the opinion that this is not necessary because the collective closures have been an integral part of the company policy for years and that agreements about this already existed before the employee became ill.

Judgment of the court

The court upheld the employee’s claim. The court ruled that there is no evidence that a written agreement was made about the alleged collective company holidays and illness. The fact that, according to the employer, the agreements on a collective business closure were already in force before the employee’s illness does not alter this. According to the court, it does not appear from the agreements made that the collective business closures also count as holidays during illness. The judge noted that, even if an agreement had been concluded, it would only apply to the holidays in excess of the statutory entitlement, and not to the statutory part (see second bullet point above).

Nor does it appear from the employer’s assertions that, when the summer closure and the Christmas closure were imminent, it was agreed with the employee that vacation days would be written off (see point 1. above). Since no use was made of the exceptions under Section 7:638(8) of the Dutch Civil Code, the main rule therefore applied: a sick day is not a holiday day.

Conclusion

This judgment makes it clear that an employer may not simply deduct vacation days from the vacation balance of a sick employee during a collective company closure. It is therefore wise for employers to make clear agreements about this with their employees in advance. This can be done in two ways: (1) by explicitly agreeing with the sick employee just before the closure that statutory and/or non-statutory holidays will be debited during the closure period (the so-called agreement ‘in the case as the case’), or (2) by laying down – by means of an individual or collective agreement – that sick days during the collective company closure are considered as holidays. Please note: option two can only relate to holidays in excess of the statutory entitlement.

If such agreements are missing, the employer runs the risk of having to pay out extra vacation days at the end of the employment. This risk is particularly present in the case of long-term sick employees, because their vacation days do not expire if the employee has not had the opportunity to take the vacation days.

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

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

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