Dutch court decision gives clarity on vacation deduction in case of illness

The court found that vacation days should not be simply deducted from the vacation balance of an employee who falls ill before a scheduled vacation. This follows from the principle of article 7:638(8) in the Dutch Civil Code (DCC) that days on which an employee is ill during a scheduled vacation are not counted as vacation days unless the employee gives consent to those days being used as vacation, or a written agreement is in place stipulating that days of illness are set off against non-statutory vacation days. 

Amsterdam-based employment law experts Lilian Peels and Floor Hintzen of Pinsent Masons explained that the ruling underlines the importance of clear agreement between employers and employees and clear communication on obtaining explicit consent to deduct vacation days in cases of illness before (or during) a scheduled vacation period.

In this case (8 pages, 298KB), an employee was due to take 29 days of vacation leave, with the request confirmed by the employer. However, ahead of this leave the employee reported he was unfit for work. The company doctor deemed the employee unfit for work in his own work as well as other work in his own or any other department within the business. The employee stated he was still planning to go on vacation, confirmed this with his supervisor and company doctor, and the company deducted 29 days of leave.

The employee subsequently demanded the 29 vacation days be restored. He did so on the basis that the company had acted in violation of article 7:638(8) of the DCC by writing off the vacation, since he was unfit for work during this period. The employer argued that the employee had agreed to deduct the days as vacation.

The decision gives further clarity to the rules in the DCC, confirming that the provisions do not only apply if an employee falls ill during a scheduled vacation, but also if an employee falls ill after a vacation has been scheduled but before it has commenced, and the employee takes the vacation despite illness.

The Supreme Court held that for an employer to assume employee consent to the deduction of vacation under the DCC, it is not sufficient for the employee to inform the company doctor and/or their employer that they still plan to take scheduled vacation. In addition, the Supreme Court held that employees must expressly and specifically consent to the deduction of vacation days each time the circumstance giving rise to the illness absence actually occurs or has occurred.

Peels and Hintzen commented: “This specific case concerned the situation where the employee was deemed 100% incapacitated for work and no reintegration obligations were imposed on the employee during the vacation period. If an employee is however subject to reintegration obligations, the employer may, in consultation with the company doctor, decide not to release the employee from the reintegration obligations during this period, in order to get the employee to consent to the deduction of vacation days.”