At the end of summer, a frequently asked question is: how many holidays do I have left? This question becomes more pressing if a an employment is ending. How will unused holidays be dealt with? Is the employee entitled to payment, or can the employer oblige him to take these days still? Unused Holidays – Dos and Don’ts
The law provides that the employer has to determine the holiday period in accordance with the employee’s wishes. So it is the employee who decides; the employer cannot force the employee to take holidays, not even upon the end of the employment. If any holidays are left, the employer has to pay for them. Payment is also due if the employee is exempted from work. As appears from a ruling of the Court of Appeal of Amsterdam, this arrangement will not affect the balance of holidays. If you want to prevent trouble with holidays, you should expressly stipulate that the employee will take his remaining holidays and that no payment will be made for them. This is not an unusual topic in negotiations.
Statutory Expiry Period
The statutory holidays accrued will expire six months after the last day of the calendar year in which they have been accrued. For non-statutory holidays (i.e. holidays the employee receives on top of the statutory minimum of 20 days), this term is five years. So after this term, there can be no more taking or paying of holidays. However, if the employee ‘has reasonably been unable to take the holidays’, the holidays will not lapse. A recent ruling of the Subdistrict Court of Amsterdam concerned two employees who claimed holidays dating back to 2013 and 2014. They argued that these days had not lapsed because they had never been able to take holidays. The Court considered their arguments incorrect. Taking holidays is the responsibility of the employees. Since these two employees had never asked their employer if they could take holidays, they could not blame their employer for not having been given the chance to take holidays. The holidays had lapsed.
Only under exceptional circumstances it will be assumed that the employee is not reasonably able to take holidays. As appears from the above, these circumstances are that the employer has made it impossible for the employee to take holidays. Even if the employee is ill, the statutory expiry period applies. This is only different if the employee has been fully exempted from re-integration obligations. In that case, the statutory expiry period does not apply, as appears from a ruling of the Subdistrict Court of Utrecht, because the employee is not capable of taking holidays due to illness.
- An employee cannot be forced to take the outstanding holidays upon the end of his employment.
- You should expressly include in the contract that holidays will be deemed to have been taken and will not be paid out, in order to prevent having to pay them out after all.
- Holidays will lapse, unless the employer has made it impossible for the employee to take holidays or an employee who is ill cannot re-integrate.
This article has also been published as a blog on Management Team (MT.nl) on 28 August 2017.