That employees' holidays are a great asset has been known for a long time. Various rulings at European and national level show that this is dealt with strictly and that the verdict is often in favour of the employee. The Supreme Court colours the rules around sickness during holidays even further in its judgment of 17 November 2023, which deals with the question of whether sick days may be set off against holidays when the holiday has already been determined before the employee becomes long-term sick.
An employee of DAF Trucks N.V. ("DAF") of Eindhoven had applied for leave as he intended to go on a trip to Norway from 13 May to 22 June 2018. Six months earlier (in December 2017), the leave request had been approved. Subsequently, the employee reported sick on 29 January 2018. The illness turned out to be long-term, as in May 2018, the employee was still unfit for work. During the consultation with the company doctor on 3 May 2018, the employee indicated that he nevertheless planned to take the trip to Norway. Shortly after the visit with the company doctor, the employee informed his supervisor that he would soon be going on holiday. His supervisor confirmed that he was aware of this. Subsequently, DAF booked off 29 days for this holiday.
This was where the employee disagreed and objected. Namely, the employee felt that DAF could not simply write off the holiday days because he was sick during his holiday. The parties did not come to an agreement and therefore the employee started legal proceedings. In it, the employee requested that DAF correct the leave balance and still pay him the 29 days' leave. DAF disagreed, arguing that under the collective agreement it was authorised to write off the holidays and that the employee had agreed to the write-off. The Subdistrict Court and the Court of Appeal of Den Bosch held that DAF was not entitled to write off the holidays.
The Supreme Court then considered the following question. May holidays be written off if an employee falls ill after a holiday has been determined and then goes on holiday anyway (with the consent of the company doctor and the knowledge of the employer)? The starting point in this case is that an employee retains his holidays so that he can use them at a later date. Writing off holidays is only possible if the sick employee expressly and specifically agrees to this or if an employee has agreed in advance "by written agreement" to consider sick days during holidays as holidays.
To assess this, the Supreme Court looked at whether there was consent by the sick employee or whether DAF was authorised to write off the holidays under the collective agreement. This included the possibility to set off sick days against holidays. It had to be assessed whether the CAO was considered a 'written agreement' within the meaning of Section 7:638(8) of the Dutch Civil Code.
According to the Supreme Court, the employee did not consent to the holiday days being written off. The fact that the long-term sick employee had indicated to the company doctor and his supervisor that he wanted to go on holiday despite illness is insufficient to assume that the employee consented to the writing off of the holidays. In addition, the Supreme Court did hold that the collective labour agreement qualifies as a "written agreement" in which parties can agree to set off sick days against holidays. On that point, the Supreme Court therefore disagrees with the court of appeal, as a result of which the judgments are set aside and referred back to the Den Bosch court of appeal.
It is important to keep an eye on when an employee requested the holiday and when they became ill. If the holiday has already been fixed and an employee then falls ill for a prolonged period of time while the holiday is still scheduled, the sick employee's holiday days cannot simply be written off. Unless the employee agrees to this or if this has been agreed in a written agreement. Would you like to know more about the rules on determining and/or taking holidays (during illness)? Then contact one of our employment law specialists. They will be happy to advise you further!