On 29 May 2020, the District Court Rotterdam ruled that an employer cannot force employees to take 20% of their holiday simply by pointing to the coronavirus crisis.
Facts
By letter dated 7 April 2020, the employer informed the employee that all staff members were expected to take 20% holiday per week until 1 June 2020. The employee refused to cooperate. The employer then asked the subdistrict court to dissolve his employment contract due to a permanently disturbed working relationship.
Dissolution of the employment contract
The subdistrict court found it sufficiently established that the relationship between employer and employee was so seriously and permanently disturbed that restoring the working relationship was no longer possible. The employer argued the employee was not performing his role as expected, and had no confidence this would change. The employee argued the employer only wanted to dismiss him because he had been critical of creative accounting within the organisation. It was established that a further productive collaboration between the parties was not possible. The employment contract was dissolved as of 1 July 2020. The employee is entitled to the transition payment.
Holiday
The employee’s contract contained a unilateral variation clause. Since he had not agreed to the unilateral change, it was up to the employer to substantiate its compelling interest in the measure (the obligation to take holiday days). A bare reference to the coronavirus crisis is insufficient for this. Moreover, the employer’s letter stated that arrangements would be made in consultation with the manager. At that point, the employee had already been suspended, and no consultation with him about taking 20% of his holiday ever took place. Against that background, the employer could not unilaterally impose on the employee that he give up 20% of his holiday.
For the full ruling, click here (in Dutch).
Questions about the above? Please contact one of Sørensen Advocaten’s employment lawyers. Call: +31 (0)10-2492444
