This Court of Appeal ruling addressed whether an employee, despite being ill, had nonetheless been able to take her holiday days. The Court of Appeal found this to be the case, meaning most of her holiday days had lapsed.
Facts
The employee worked as a sector manager. In late June 2017, she was informed that her role would be made redundant as of 1 July 2017. From that date, she would go on paid leave. A few months later, she became unfit for work until April 2019. The subdistrict court dissolved her employment contract as of 1 July 2019. She claimed payment for unused holiday days over the years 2016-2019, arguing that illness had prevented her from taking them. The subdistrict court rejected her claim. She appealed against that ruling.
Ruling
Section 7:641 of the Dutch Civil Code provides that, when an employment contract ends, an employee is entitled to payment for any outstanding holiday days. The question was whether her holiday days had lapsed. The statutory limitation periods are set out in Section 7:640a BW (six months for statutory holiday days) and Section 7:642 BW (five years for additional, non-statutory holiday days). Where these statutory limitation periods are invoked, and it is established when the period started, it is then for the court to determine when it ends.
The limitation period started on 31 December 2018 and ended six months later, on 1 July 2019. Since her last day of employment was 30 June 2019, compensation for those days must be included in the final settlement. Her 2018 holiday days were therefore awarded by the Court of Appeal.
The position is different for her 2016 holiday days. Those days lapsed on 1 July 2019, and she was not ill at that time. Her 2016 holiday days had therefore lapsed – she could have taken them between 1 April 2019 and 1 July 2019.
Her 2017 holiday days had also lapsed. Those days would lapse on 1 July 2018, unless she had reasonably been unable to take holiday until that date. Nothing in her medical records up to 1 July 2018 showed this to be the case. From her first day of absence (26 October 2017) until July 2018, she was only partially unfit for work. Moreover, that incapacity mainly related to her own workplace and employer. She had not sufficiently shown that she was unable to use her holiday during this period.
It should be noted that the employer had consistently met its duty to inform. It had adequately informed her that her holiday days would lapse. Had it failed to do so, she might still have been entitled to them. See, in this context, for example the Max-Planck case.
Click here for the full ruling (in Dutch).
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