For many it’s finally (almost) vacation. This is a good moment to consider the issue of the right to vacation. Dutch Legal Experts therefore listed the most important matters regarding vacation days for you.
How many vacation days does an employee have and what is the difference between statutory and non-statutory holidays?
By law, every employee is entitled to vacation. The law establishes a minimum number of vacation days / hours per year. This concerns four times the weekly working time. An employee who works 5 days of 8 hours is entitled to 160 hours (this is 20 days) vacation, whereby the salary will be paid. An employee who works part-time, for example 28 hours a week, can take 112 hours (14 days) of vacation. This is a minimum claim. The number of statutory holidays may not be deviated to the detriment of the employee.
However: employer and employee can agree that an employee accrues more vacation than the statutory minimum. The collective labor agreement can also stipulate that an employee is entitled to more vacation than the minimum. These extra days are called "non-statutory holidays". The holidays will be built up during the year. If an employee enters employment later in the year, he accrues the vacation pro rata.
When can an employee take holiday?
The law stipulates that the holiday is determined "in accordance with the wishes of the employee". In principle, therefore, it is the employee who decides when to take a holiday. The employer can refuse the requested holiday if there are serious business reasons for this. If the employee requests a vacation in writing and the employer does not respond to this request within two weeks, the vacation requested by the employee is accepted. The period in which the holiday must be taken can be determined in consultation with the collective labor agreement.
Not used all holidays?
An employee must be given the opportunity to use the holidays. If the employee does not use all holidays and therefore still has days left, the statutory holidays expire six months after the calendar year in which they were built up. Statutory holidays built up in 2019 therefore expire on 1 July 2020. Please note, this does not apply to non-statutory holidays. After all, this is subject to a limitation period of five years.
Tip: In 2018, the EU Court of Justice stated that an employer has a far-reaching obligation to allow the employee to actually take a holiday. The court considers the employee to be the weaker party in need of protection. As a result, the Court has indicated that the employer must ensure in all transparency that the employee is actually given the opportunity to take his annual vacation. If necessary, the employer must even formally encourage the employee to take a holiday. As a result, the employer can also better indicate to the employee that he can take a holiday until 1 July, after which the (statutory) holiday lapses.
Redeem and settlement of holidays
Statutory holidays may not be payed off during employment. The law states that this is permitted at the end of the employment. An employee who still has holidays left at the end of the employment contract is entitled to wages for these days. Because the holiday entitlement is accrued during the year, an employee may have taken more days at the end of the employment than he has accrued. For example this could be in the situation that the employee terminates the employment contract in June after three weeks of holiday. There is nothing stated in the law about such a situation. The law does not prescribe that the employee must pay back the wages of an excess of holidays to the employer. In principle, the employer may not set off the wages for these holidays. This is different if there is made an prior written agreement to this.
Tip: mention in the employment contract with the employee that if he has taken up too many vacation days at the end of the employment contract, he must repay the wages for these days and that this may be set off against the wages still owed and / or in the final payment.
Dutch Legal Experts is available to assist you with issues related to vacation days. Feel free to contact Dutch Legal Experts for more information.
Dutch Legal Experts wishes you a very nice holiday!
July 13, 2020