Netherlands: Deduction of Vacation Days During Illness

It is summer vacation again. In a number of sectors, such as education and construction, collective closures are customary. The rules applicable to employees in these sectors are generally governed by collective labour agreements.

An employer who is not bound by a collective labour agreement may also designate mandatory vacation periods—for example, between Christmas and New Year, the Friday after Ascension Day, or a period during the summer. However, this must be agreed with employees and may only concern vacation days in excess of the statutory minimum entitlement.

In the case before the District Court of The Hague, the employer had included such a provision in its staff regulations. The regulations allowed the employer to designate up to three days per year on which employees would be required to take vacation. For 2024, this concerned 10 May (the Friday after Ascension Day) and 27 December; for 2025, one such day was planned.

The employee concerned was fully incapacitated for work on the designated days (with no reintegration activities). He argued that these collective vacation days could not be deducted from his leave balance, unless he had explicitly agreed to the deduction of vacation days during illness. In his view, the general provision in the staff regulations, granting the employer authority to designate three days, was insufficient.

The Court upheld the employee’s claim. It confirmed that an employee who is incapacitated for work must explicitly consent to the deduction of vacation days during illness. General acceptance of an employee handbook or staff regulations does not amount to such consent. The employee was therefore entitled to the restoration of the three deducted leave days.

This ruling highlights once again that the treatment of vacation entitlements for sick employees is a legally complex and often misunderstood area. Employers should exercise caution and ensure that explicit agreements are in place.

Read the full judgment here.

By Hocker, Netherlands, a Transatlantic Law International Affiliated Firm. 

For further information or for any assistance please contact netherlands@transatlanticlaw.com

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