Employees are entitled to 100% continued pay during the COVID-19 crisis. An employer’s argument that it cannot afford this does not change that. The District Court Amsterdam ruled as follows on 28 May 2020.
The employee is a student. The employer runs a restaurant. He joined the employer as a service staff member on 1 November 2019, for a period until 1 May 2020. His salary was EUR 1,653 net per month including holiday allowance. Due to the coronavirus crisis, the restaurant closed from mid-March 2020, with only limited takeaway remaining. The employer asked all employees to take holiday days from mid-March 2020. In March 2020, it applied for NOW wage subsidy and received 60% of its January 2020 wage bill. It paid all employees 50% of their salary. The employee received EUR 850 net. In summary injunction proceedings, he claimed payment of the remainder of his salary. The employer acknowledged owing the salary but stated it could not afford to pay it.
The subdistrict court found it sufficiently plausible that the employer faced an unforeseen, compelling business emergency. It therefore had a compelling interest that, in principle, meant employees could be asked – in consultation – to suspend or even fully waive certain employment-law entitlements. However, the employer’s unilateral decision, taken without further consultation, to pay only 50% of salary caused too great a loss of income for the employee, putting him in financial difficulty. He depends on his wages to support himself. He therefore could not be required to accept a 50% pay cut over several months. The subdistrict court did, however, reduce the statutory wage-delay surcharge to nil and rejected the claims for statutory interest and payment for overtime. The claim for compensation for unused holiday days was also rejected. The ruling does not address whether the employer’s request to take holiday days during the restaurant’s closure was reasonable.
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
