Can a sick employee take a free vacation?


Can a sick employee take a free vacation?

In a short space of time the Dutch Supreme Court has ruled on the issue of ‘illness’ four times. We commented on the first three cases on the ban on termination of employment during illness in our previous blog. The fourth case dealt with illness during vacation.

The question before the Dutch Supreme Court was: if an employer approves a vacation request and the employee falls ill before he takes this vacation, may the employer deduct the vacation days from the employee’s leave balance? 

While reintegrating workers may take vacation days, employees who are fully incapacitated for work may not
Firstly, the Dutch Supreme Court found that employees who are unfit to work but who had reintegration obligations may take vacation days. After all, these employees can recover from the work carried out, just like employees who are fit for work.

Secondly, employees who are fully incapacitated for work and thus unable to perform their tasks, may not take the vacation days, the Dutch Supreme Court ruled.

Dutch Supreme Court gives free vacation to ill-intentioned employees
This is not the end of the matter, because in the third place the Dutch Supreme Court found that if an employee falls ill after the vacation has been set but nevertheless goes on vacation, those days cannot be deducted from the employee’s leave balance. In other words, that employee can take a ‘free’ vacation.

Thus, vacation days may be deducted from the leave balance only if the employee explicitly agrees to this. The only ‘escape’ that exists is for vacation days in excess of the statutory minimum leave; for these days it can be agreed in advance in writing that they may be deducted from the leave balance. This written agreement can also be laid down in a collective bargaining agreement, the Dutch Supreme Court stated. Moreover, this possibility also applies to sick employees who are not able to reintegrate.

This ruling may encourage abuse. After all, an employee may call in sick right before his scheduled vacation. It would then be difficult for employers to call in a company doctor before the vacation starts to check whether employee is actually unfit for work. This will enable the employee to take a ‘free’ vacation. To make things more difficult for ill-intentioned employees, it can be agreed that the employee is not entitled to payment of wages in respect of the first two days of illness.

New questions
This ruling raises a number of new questions. Can the employer prohibit the employee who becomes ill just before his vacation from going on vacation? And does this ruling also apply if the employee does not report that he fell ill during his vacation until after he comes home?

The link to the Dutch Supreme Court’s ruling can be found here: Hoge Raad November 17, 2023, ECLI:NL:HR:2023:1603.

Lees deze blog in het Nederlands hier.


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Sander Theunissen

+31 (0)6 114 99 465

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