22 Sep Emergency summary judgment on ‘career break’ application
Is the employee entitled to a career break?
Facts
An employee of Italian descent works as a cabin attendant for an airline and is currently studying Psychology at Leiden University. She has plans to participate in an exchange program in Canada from Sept. 1, 2023, to Dec. 31, 2023.
The airline has its own collective labour agreement (CLA). Article 5.11 of this collective labour agreement contains a provision on a so-called career break. According to this regulation, employees have the possibility to request a period of non-activity. Review of this request is at the full discretion of the airline.
Given the employee’s part-time appointment, the employee’s vacation summaries indicated that the employee would be off during the entire month of September 2023. With this in mind, she applied for a career break on May 5, 2023, to attend her exchange program. On May 9, 2023, she received a response from the airline, which indicated that the career break, when it is made available, will be announced trough a newsletter.
The employee then contacted the company twice more to verify the status of her request. On June 8, 2023, the airline informed the employee: “I do personally encourage you to pursue your dreams and if there’s any possibility to help you out we would do that.”
In its June 23, 2023 newsletter, the union announced that the period for the career break is from Nov. 1, 2023, to Jan. 31, 2024. Thus, the employer does approve the request, however with respect to a different period than desired by the employee. The employee then requested unpaid leave for the month of October 2023 in order to still be able to attend the exchange.
Despite its efforts to reach an agreement with the airline for days off in October 2023, the parties failed to reach an agreement. Therefore, the employee decided to file an emergency summary action to be granted the leave previously granted, but later revoked, for the month of September 2023. In addition, she is asking for the career break to be adjusted to include October 2023, or to be granted unpaid leave for the months of September and October 2023.
Review
The summary judgment covers two periods, September 2023 and October 2023.
September 2023
The notice from the airline that – contrary to what the schedule previously indicated – the leave request for September 2023 could not go through was too late. This communication took place on July 12, 2023, almost 6 months after the roster showed that this period was registered as leave. The mere fact that the employee has a negative leave balance for 2023 does not make this different. The employee’s claim to order the airline to grant her the provided leave in September 2023 is granted.
October 2023
Regarding the requested leave in October 2023, the district judge noted that there is no legal right to unpaid leave. Under the collective bargaining agreement, however, there is the possibility of a career break. Although the employee submitted the application for the career break well in time, she received no concrete answers to her questions about it until the end of June 2023. From the airline’s statement, quoted above, that the airline encouraged employee to pursue her dreams and to help her do so whenever possible, employee was entitled to infer that “things would work out.
In refusing to approve the leave request for the month of October 2023, the airline violated the standards of good employment practice. The employee’s interests in attending the exchange – located in her development as a psychologist-to-be and increasing her chances of admission to a specific master’s degree – outweigh the airline’s interests in having the employee available for the month of October 2023.
The subdistrict court ordered the airline to tolerate the employee interrupting her career by taking unpaid leave from October 1, 2023 to December 31, 2023. Finally, the airline was also ordered to pay the litigation costs and after-the-fact expenses.
For the full ruling , click here.
A little reminder.
There is no legal regulation for unpaid leave and career break. The test of the extent to which an employer is bound to accept such a request from its employees takes place along the bar of good employment practice. These are highly case-specific issues, always involving a balancing of interests.
How employers should deal with requests for paid leave is, however, defined by law. The basic principle is that leave requests will be granted in accordance with the employees’ wishes, unless compelling reasons dictate otherwise. Such reasons exist, for example, if granting the request would lead to serious problems in business operations. Within two weeks of receiving the employee’s vacation request, employers must respond. If the employer fails to do so, the employer is presumed to have granted the permission.
Our advice
It is very important for employers to communicate timely and clearly about employee leave requests. In these proceedings, the district judge gave valuated the fact that the airline communicated late about the leave request. In addition, the statement about the employee chasing dreams was also explicitly considered by the subdistrict court.
If you have any questions regarding the above, we are pleased to be of your assistance(contact). We are ready to assist you and provide you with legal advice.
