Recently, the Subdistrict Court of Gelderland rendered an important ruling in a case between an employee on long-term sick leave and his employer. The Court held that ill employees accrue full holiday hours throughout their period of illness, regardless of whether they perform work and regardless of whether they are entitled to wages. The Court based this opinion on EU law and chose not to apply Dutch law on this point.
Facts and opinion of the Subdistrict Court
The employee in question has been ill since 2019. In connection with a wage sanction imposed, the employer had continued paying the wages until March 2024. Since March 2024, the employee is receiving full invalidity benefits. The employee is fully and permanently unfit for work and had therefore no more chance of either recovering or returning to adjusted work at the employer’s. The employer refused to cooperate in terminating the dormant employment. The Subdistrict Court rescinded the employment agreement as of 12 August 2025. In line with the Xella judgment of the Dutch Supreme Court, the Subdistrict Court awarded compensation equal to the transition fee.
Besides their dispute on the termination, the parties also differed on whether the employer had to pay the employee the unused holidays in the period from 1 March 2024 up to and including the end of the employment. The Subdistrict Court held that ill employees continue accruing holiday hours even after the end of the waiting period (i.e. after two years of illness), regardless of whether or not they are working and whether or not they are entitled to wages. As part of the final settlement, the employer therefore also had to pay the holidays that were accrued between 1 March 2024 (end of continued payment of wages) and 12 August 2025 (end of employment).
National law vs. EU law
Pursuant to Section 7:634 (1) of the Dutch Civil Code, the accrual of holidays is linked to the entitlement to wages. As of 1 March 2024 the employee was no longer entitled to wages, so according to Dutch law he would not have accrued any more holidays since then.
However, the Subdistrict Court based its opinion on EU law. They considered it contrary to Article 7 (1) of Directive 2003/88/EC that the employee only accrues holiday hours during the period in which he is entitled to wages. The entitlement to holidays is also set out in Article 31 (2) of the EU Charter of Fundamental Rights. In the Max Planck judgment, the European Court of Justice has ruled that if it is impossible to interpret national legislation in a manner consistent with Article 31(2) of the EU Charter of Fundamental Rights, the national court may disapply the national legislation that is incompatible therewith, if necessary. Based on the above, the Subdistrict Court has disapplied the national provision in Section 7:634 DCC.
In short, it is contrary to EU law that an employee accrues holiday hours only during the period in which he is entitled to wages. The employer at issue was ordered to pay the gross sum of €13,149.74 for holiday hours not taken.
Consequences for Employers
This ruling marks a big shift compared to current practice. If other courts follow this line, it will mean that even after the end of the waiting period employees will retain entitlement to full accrual of holidays for as long as the employment contract continues (unamended). This will not only have consequences for situations in which an ill employee is not working at all, but also for situations in which an ill employee keeps partially working as part of their reintegration after the end of the waiting period, without any amendments to the contract.
Do you wonder what this ruling means for your organisation? Please feel free to contact us.
Court of Gelderland, 12 August 2025, ECLI:NL:RBGEL:2025:7054.
