The purpose of holidays is “recovery”. Employees need holidays to relax and recharge their batteries, so to speak. However, holidays can lead to legal disputes between employers and employees. In this article, we will discuss a number of real-life situations.

The value of a holiday day

There is regular discussion about what salary should be paid during an employee’s holiday. Is it the basic salary or should additional wage components also be paid?

The basic principle is that the employee receives the same salary during his holiday as when he is working. This is to prevent employees from not taking holidays because of a drop in income during the holiday. According to the European Court of Justice, holiday pay includes the basic salary and other salary components that are intrinsically linked to the performance of the tasks specified in the employment contract. This must be assessed for each salary component.

In any case, holiday allowance and any fixed thirteenth month’s salary must also be calculated on the basis of holiday pay.

If an employee receives a structural irregularity allowance, shift allowance or evening, night or weekend allowance, this must be included in the calculation of holiday pay.

In principle, overtime pay is not part of holiday pay. This may be different if an employee is regularly required to work overtime and the overtime pay forms a significant part of the employee’s total pay.

Travel or expense allowances are in any case not included in holiday pay.

Expiry of holiday entitlement

We already pointed out in 2023 (see here) and in 2022 (see here) that statutory holiday entitlement does not simply expire after the expiry period specified in the law. Employers must actively, promptly and accurately inform their employees that statutory holiday entitlement will lapse if it is not taken within six months of the end of the calendar year in which it was accrued. If necessary, the employer must formally encourage the employee to take holiday. If an employer fails to comply with this active duty to inform and encourage, the statutory holiday entitlement will not lapse after six months, but the regular limitation period of five years will apply.

Holiday and illness

Incapacity for work does not have to prevent an employee from taking holiday. After all, holiday entitlement continues to accrue in full during illness. On the other hand, holiday can also be taken during illness. If an employee has reintegration obligations and wishes to be exempted from these, they will have to take holiday for their full contractual hours. However, if an employee who is permanently and fully incapacitated for work has no reintegration options at all, taking holiday is in principle not an option.

If an employee is ill during a fixed holiday, the main rule is that these are no longer holiday days, but sick days.

The first way to deviate from this main rule is to agree in advance in a written agreement that sick days count as holiday days. However, this is only possible with regard to the extra-statutory holiday days accrued in the year in question.

Secondly, it is possible to deviate from the main rule for both statutory and extra-statutory holiday days if the employee agrees to this. Consent must relate to the specific holiday. General consent in advance is therefore not possible. In its judgment of 17 November 2023 (see ECLI:NL:HR:2023:1603), the Supreme Court ruled that consent must also be given explicitly. The fact that an employee has informed the company doctor or the employer that he still wishes to take his holiday, which was planned before he became ill, does not imply that the employee has also agreed to the deduction of holiday days.

What is also important in this context is that when holiday days are taken during incapacity for work, the full wage for the holiday days must be paid and not just the limited wage that must be continued to be paid during illness.

Summary dismissal if not back from holiday on time

What if an employee does not return from holiday on time? Is that a reason for summary dismissal?

In the case recently considered by the Arnhem-Leeuwarden Court of Appeal (see ECLI:NL:GHARL:2024:4102), the following occurred:

The employee had requested four weeks’ holiday. Due to the high workload, the employer had rejected this request, but had approved three weeks’ holiday. Because the employee indicated that he did not agree with this, the employer pointed out that there would be serious consequences if the employee went on holiday for four weeks after all. On the way to his holiday destination, the employee had a car accident. It took longer than three weeks before the employee could collect his car from the repairer. As a result, he did not return from holiday on time, without informing the employer. When the employee did not show up on the day after his holiday ended, the employer gave him one last chance to come to work the following day. If the employee failed to comply, he would be dismissed with immediate effect. It then took several more days before the employee returned to the Netherlands. The employer dismissed the employee with immediate effect for refusal to work and/or unauthorised absence.

The employee contested the summary dismissal. According to the employee, there was force majeure because, as a result of the accident, he had no transport to return from his holiday on time. The Court of Appeal took a different view. The employee had had enough time to investigate how he could have returned to the Netherlands on time. There were good bus connections. The employee should have investigated whether he could have picked up the car at a later time or had it brought to the Netherlands. In any case, he should have informed the employer that the repair of his car would take a long time and consulted with him about how to proceed. He failed to do so. The Court of Appeal therefore ruled that the summary dismissal was legally valid.

Ultimately, it always depends on the exact circumstances whether returning late from holiday constitutes urgent grounds for summary dismissal.

Contact

Do you have any questions about employment law issues, such as holidays? Please do not hesitate to contact one of our employment law specialists, Lisanne Somers or Ine Swennen. They can be reached on 043 321 6640.

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