Netherlands: Supreme Court Ruling: Beware Of The Employers' Duty Of Care Regarding (the Lapse Of) Vacation Days – L&E Global

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In a recent landmark case, the Supreme Court shed light on the
lapse of vacation days and the employers’ duty of care in this

In Dutch labour law, a distinction is made between statutory
vacation days (a minimum of 20 days per year for full-time
employment) and additional vacation days known as
“bovenwettelijke vakantiedagen.” These additional days
are granted beyond the statutory minimum and are often awarded
based on company policies or collective bargaining agreements.
Statutory vacation days have a short expiration period. They must
be used within 6 months after the end of the year in which they
were accrued (Art. 7:640a Civil Code). Bovenwettelijke
vakantiedagen, on the other hand, expire five years after the year
in which they were accrued (Art. 7:642 Civil Code).

Dutch lower courts have established that if an employer fails to
inform an employee about their vacation entitlements, does not
enable them to take vacation, and does not warn them about the
consequences of expiration, the employer cannot reasonably enforce
the expiration period for accrued statutory vacation days. Mere
inclusion of expiration clauses in employment contracts or vacation
regulations is insufficient.

The Supreme Court upheld the decision made by the lower court,
which found that the employer had failed to provide sufficient
evidence to demonstrate that they had fulfilled their duty of care
and information obligations towards the employee. The employee
should have been genuinely enabled to exercise their vacation
rights with full pay before they expired. Notably, the Max Planck
case dealt with a three-year expiration period, but the Supreme
Court emphasized that even with a five-year expiration period, the
employer must meet their duty of care and information obligations
to successfully invoke expiration as a defence.

Key Action Points for Human Resources and In-house Counsel

  • Review employment contracts and vacation policies to ensure
    they clearly state the expiration periods for statutory and
    additional vacation days.

  • Train managers and HR staff on the duty of care and information
    obligations regarding vacation entitlements, including the
    importance of enabling employees to take vacation before

  • Consider implementing a system for tracking and reminding
    employees about their accrued vacation days and expiration periods
    to avoid disputes and potential legal claims.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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