Dutch Supreme Court clarifies rules on reduction of vacation days of a sick employee

The Dutch Supreme Court recently issued a ruling that clarifies that an employee must expressly and specifically consent to the deduction of vacation days from the employee's leave balance in the situation that an employee becomes ill while a vacation request is already approved.

The fact that the employee is going on the previously established vacation while being ill is insufficient for the deduction of the vacation days. Also, the employer cannot infer consent for deducting the vacation days from the fact that the sick employee seeks permission from the company doctor or manager for going on the vacation.

Legal framework and ruling

It follows from Dutch law (article 7:638 paragraph 8 of the Dutch Civil Code) that (part of) days on which the employee is ill during an approved vacation do not count as vacation days, unless if:

• the employee agrees to this; or
• it is stipulated by written agreement that days of illness in a particular year will be considered as vacation days (up to the maximum of non-statutory vacation days for that particular year).

The Supreme Court ruled that this provision not only applies when an employee becomes ill during an approved vacation but also when an employee becomes ill after the vacation request has been approved but before it has started. On this basis, the approved vacation will only be considered as vacation if the employee has consented to designate these days during illness as vacation days (or if this is stipulated by written agreement).

From the ruling it follows that for such consent, the employer cannot reasonably rely on the employee's statement to the employer, the employee's manager nor the company doctor that the employee would go on vacation "as planned". Consequently, in this particular case, the employee was entitled to compensation for the loss of vacation entitlement.

Did you know?

• The employee and employer may agree in advance, for example, in the employment agreement or a sickness policy, that days of illness in a particular year will be considered vacation days (as far as it relates to non-statutory vacation days).
• An employer must inform, encourage and enable the employee to take vacation, in the absence of which statutory vacation days will not expire (six months after accrual) and non-statutory vacation days will not lapse (five years after accrual).
• An employer must approve the employee's vacation request in principle within two weeks, after which the vacation will be determined in accordance with the employee's wishes.
• The employee and employer can agree that during employment the accrued non-statutory vacation days will be paid out.

If you would like more information about taking vacation or deducting vacation days during the employee's illness, or if you would like to update your vacation policy, don't hesitate to contact one of our experts.