Q&A – Taking holidays

In this article, we address some common questions related to taking holidays.

1. Can a holiday request be refused?

In principle, employers must grant holiday requests in accordance with the employee’s wishes. This is different if there are compelling reasons not to do so. These are not easily met. A compelling reason only exists if taking the holiday will seriously disrupt business operations, for instance if no replacement can be arranged and/or the company will even have to close if the employee were to go on leave. In addition, the consequences of disrupting business operations must be weighed against the consequences for the employee of not granting the holiday request. Incidentally, this does not mean that the employee does not have to request holiday in advance under the pretext of “my employer cannot refuse”.

Employers and employees may agree in writing to different arrangements, for example in an employment contract or staff handbook, stating that leave cannot be taken (or is restricted) during certain periods (peak times). Also in that case the employer must still have compelling business reasons.

If a holiday request is refused due to compelling reasons, employees must in any case be given the opportunity to take two consecutive weeks or twice a week’s holiday (if they wish).

In principle, employers will have to respond to employees’ holiday requests within two weeks (a different deadline can only be agreed in writing for extra-statutory holidays). If the employer fails to do so, it is assumed that the employee has permission to go on holiday.

2. May employees disabled for work take holidays?

During illness, employees may take holidays (also with employer’s permission), albeit this must be done in consultation with the company doctor. The company doctor will determine whether there are medical objections to taking holidays, for instance if it hinders or delays reintegration. If such objections exist, the holiday request may be refused. In case the employer or employee disagrees with the opinion of the company doctor, they can both request an expert opinion from the UWV (Dutch Social Security Agency). During the holiday, no reintegration obligations apply and the sick employee is entitled to 100% of salary, even during dormant employment.

If the employee falls ill just before his/her (already applied for) holiday, no holidays may be written off and these planned holidays have to count as sick days, as the employee cannot ‘enjoy’ the holiday (recuperate). The employee may then take holidays at another time.

For the sick employee, sick days may only be regarded as holidays (booked off) if the employee agrees. Only in that case, therefore, may those days be deducted from the balance of (extra-statutory) holidays. This also applies if the employee had already applied for these holidays and then falls ill and the employee then ‘carries out’ the planned holiday and even in the aforementioned case where the sick employee takes holidays during illness. In case of a sick employee, the employer must therefore be alert to the employee’s consent that the days are deducted as holiday days.

3. Can an approved holiday be withdrawn/shifted by the employer/employee?

Only if the employer has compelling reasons to do so. Think, for example, of a sudden rush in the company due to an urgent order or indispensability of the employee in connection with the sudden illness of his replacement. In this case, however, the employer will have to compensate the employee for any damage suffered as a result of this withdrawal, for example cancellation costs.

In principle, the employee may only withdraw or postpone an approved holiday period with the employer’s consent. However, reasonableness and fairness play a role here. For example, it may be unreasonable for the employer not to agree to such a request if there is no work available for the employee.

4. What if (sick) employees go on holiday without permission?

This could potentially be classified as work refusal or obstruction of reintegration. Under circumstances, this could be grounds for termination of the employment for culpable behaviour or even constitute an urgent reason for summary dismissal. However, this strongly depends on the specific circumstances of the case.

For example, if the employee goes on holiday anyway after the employer fails to respond to the holiday request, this cannot easily be considered as a refusal of work. It may be different if the employee still goes on holiday after the employer’s (timely) rejection of the holiday request.

Keep in mind that it is up to the employer to prove that the employee went on holiday without permission (if this is denied by the employee).

5. Must employees be reachable during their holidays?

In principle, the employer cannot require employees to perform work or be reachable during holidays, unless mutually agreed. However, if employees report sick during holidays, they are obliged to keep themselves available to the employer (see also under question 6). Even in the case of exceptional circumstances at work, employees may sometimes be required to be available or perform work. However, such exceptions are rare.

6. What to do if employees call in sick during holidays?

If employees call in sick during holidays, the sick days may not be regarded as holidays, but must be converted to sick days (see above). This is only different if, in such a case of illness, employee agrees to count these days as holidays (see also under 2). This can also be agreed in advance (e.g. in the employment contract), but then this set-off will only be allowed against the extra-statutory holidays.

The employee will have to report sick leave during holidays to the employer as soon as possible. In that case, the employer may require the employee to keep himself available and may summon the employee to the company doctor to determine whether he is disabled for work. If the employee is abroad (and unable to return to the Netherlands), there is the possibility of having such an examination by a company doctor at a foreign equivalent of the UWV. If employees fail to comply with the employer’s regulations, a disciplinary sanction may possibly be imposed for this and, in extreme cases, even dismissal (summary dismissal).

7. What if the employee returns late or does not return from holiday?

In that case, the employer will have to verify the reason for this. For example, if the employee is prevented by illness or other force majeure from returning (on time), this is usually a valid reason. For this, however, the employee will have to contact the employer as soon as possible and be able to prove that he could not return (in time) from his holiday destination (and has made every effort to do so).

If employees return late without a proper reason or even refuse to return at all, this can lead to disciplinary sanctions. In some circumstances, this can even lead to dismissal (summary dismissal), for example if the employee returns late despite multiple warnings.

8. What if employees still have (many) holidays left after the holiday season?

Statutory holidays expire six months after the calendar year in which they were accrued (unless a longer period has been agreed or unless the days could not be taken), i.e. from July in the year after the days were accrued. Extra-statutory holidays expire within five years of the calendar year in which they were accrued, provided the employee has been given the opportunity to take them (see below). Incidentally, this limitation period can be interrupted by the employee, causing the limitation period to start running again.

Based on European case law, the employer has a heavy duty of care regarding the take-up of statutory holiday days by employees. The employer must inform the employee about the expiry of the holidays and actively encourage them to take them. It is up to the employer to prove that this effort obligation has been met. If employees still have (many) holiday days left, it is advisable to sit down with employees in the autumn, for example, to make agreements on taking the holiday days for the rest of the year and also put this in writing.

If employers fail in this duty of effort (or cannot prove that they have complied with it), the statutory holidays will be subject to the longer limitation period of five years instead of the six-month expiration period. The same applies if employees are unable to take/enjoy holidays; this may be the case, for example, in the event of long-term full disability for work. However, if employees deliberately choose not to take their statutory holiday days despite employers’ efforts, these holiday days do lapse within six months after the calendar year in which they were accrued.

In addition, for statutory holidays, it is not allowed to buy them off during employment. This is allowed only in the case of extra-statutory holidays.

9. What to do with remaining holidays at the end of employment?

At the end of the employment the employee is entitled to payment of the accrued but unused holidays. The way in which the employment ended is irrelevant here. To determine the outstanding holiday balance on the end date, any lapsed or time-barred holiday entitlements will not count towards this balance (see under question 8). Incidentally, it is possible to make different arrangements about the payment of holidays with the final settlement of accounts in a termination agreement (in the form of a settlement agreement).

The employer is also obliged to issue a statement to the employee at the end of employment that includes the remaining holiday balance. The employee can still take these holidays with his/her new employer without salary payment, unless other arrangements are made with the new employer (and the employee can still enjoy at least the statutory minimum number of holidays).

For the payment of holidays with the final settlement of accounts, the value of a holiday day is equal to one day’s pay, calculated on the basis of the last-earned salary. This salary does not only include base salary, but also holiday allowance, any fixed thirteenth month, fixed end-of-year bonus, profit sharing, bonus, commissions, personal allowances. The employer’s pension contribution can also be included in this salary, but this is subject to debate and some rulings leave the employer’s pension contribution out of the calculation. In case of illness, the full salary must be taken into account, even if only 70% was paid.

A negative balance of holidays may in principle be set off against the final settlement, although it is advisable to make written agreements on this in advance due to varying case law on this point.

Do you have any questions about taking holiday leave or would you like to ensure that your holiday policy is legally compliant? Please do not hesitate to contact us.