December is just around the corner: the gingerbread biscuits are out, the mulled pears are simmering, and the first doughnuts are already on sale. A festive time of year, but also one in which employers and employees can run into specific employment law questions. In this article, we set out a number of important points of attention for this year-end period.
Always a day off on public holidays?
The Netherlands has a number of official public holidays: New Year’s Day, Good Friday, Easter Sunday and Monday, King’s Day, Liberation Day, Ascension Day, Whit Sunday and Monday, and Christmas Day and Boxing Day.
Dutch law does not provide that an employee is entitled to a day off on an official public holiday. Whether an employee has the day off follows from the applicable collective labour agreement (CLA), the employment contract, or the terms of employment policy. If no arrangements have been made about this, the starting point is that the employer is not obliged to give the employee time off.
If an employee nevertheless wants the day off on a public holiday, they can take holiday leave for it. Employers can also choose to designate mandatory days off. A well-known example is a “bridge day” between two public holidays. This is permitted where it has been agreed in advance in the CLA or employment contract.
Falling ill during booked holiday days
December is a popular holiday month: many employees take leave around Sinterklaas, Christmas, and New Year. It is precisely during this period, however, that illness occurs relatively often.
When an employee falls ill during their booked holiday days, they must report this to the employer as soon as possible, even when abroad. It can be sensible to support the sick leave with evidence, such as a doctor’s note.
If an employee falls ill during a holiday, they not only retain their right to continued payment of wages, but also to the holiday days affected by the illness. These days are converted into sick days. The employer must therefore credit the previously taken holiday days back to the employee’s leave balance, so the employee can still take them at a later time.
Ad-hoc bonuses
In December, employers regularly choose to give employees something extra. Although this is often seen as a friendly gesture, ad-hoc bonuses can have employment law consequences for employers.
Ad-hoc bonuses are one-off payments the employer awards without any fixed rules or agreements underlying them. The employer decides for itself when and to whom to award such a bonus. There are no predetermined criteria or targets.
In some cases, ad-hoc bonuses can nevertheless create the impression of a fixed form of remuneration. Where, for example, an employer pays an additional amount around the same time every year, an employee may come to see this as an acquired right. This could allow the employee to claim repetition in subsequent years, even where the bonus was originally intended as a one-off gesture.
It is therefore advisable to record in writing, for ad-hoc bonuses, that they are a one-off, non-structural payment from which no future rights can be derived. It is also advisable to maintain a clear bonus policy, so employees understand in which situations a bonus is awarded and on what criteria.
Christmas hampers and false self-employment
For many people, Christmas means hamper season. Even so, an employer is not obliged to give employees a Christmas hamper. It also regularly happens that permanent employees receive a hamper while self-employed workers or agency workers do not. This is permitted under employment law.
It can sometimes actually be wise for employers not to give self-employed workers a Christmas hamper, to avoid the risk of false self-employment. Where a self-employed worker is treated in the same way as an employee, for example by taking part in staff outings, internal arrangements, or receiving the same Christmas hamper, a court could interpret this as an indication that an employment contract genuinely exists in practice.
It is therefore important for employers to keep maintaining a clear distinction between employees and self-employed workers.
Alcohol at staff parties
Alcohol plays a role at many staff outings, especially in December. Although such drinks and outings often take place outside working hours, the employer’s duty of care remains in force to some extent. This means employers can be expected to take appropriate measures, such as offering non-alcoholic alternatives, communicating rules of conduct in advance, and preventing employees from driving home under the influence, for example by arranging transport.
If an accident occurs during or after a staff outing, the employer can, under certain circumstances, be held liable, especially where the outing was organised by the employer and insufficient safety measures were taken. Inappropriate or boundary-crossing conduct resulting from alcohol consumption can also give grounds for employment law measures.
It can therefore be wise to establish a clear alcohol or conduct policy, setting out what is not permitted and how incidents will be handled. This provides both clarity for employees and protection against employment law risks.
Do you have questions about any of these topics? Our employment lawyers are ready to help.
