What are your employment rights regarding holidays during the coronavirus crisis?
Due to the coronavirus, many employers and employees are uncertain about how to handle the issue of holidays. Noordam Employment Law sheds some light on this issue.
On one hand, employees may be forced to postpone their holiday plans, on the other hand, many employers do not have sufficient work available to keep their employees working. It can also be that the demand for certain services and / or products suddenly increased due to the coronavirus outbreak, and employees are consequently suddenly needed in order to service this demand.
So, what can employers and employees expect from each other?
Can employees be obliged to take holidays?
An employer cannot oblige their employees to take holidays, even if there is less work available due to the coronavirus outbreak. Holidays must be agreed upon between the employer and the employee.
However, given the exceptional circumstances, employees can be expected to act reasonably towards the employer. For example, it is conceivable that an employer and employee agree that a certain part of the holidays will be taken before a certain date. This prevents staffing problems after the coronavirus is in a "recovery" period.
In the event the employee refuses to agree with such a request, the employer can oblige the employee to take holidays, but only if the employer has important interests in doing so. The employer must be able to substantiate why the coronavirus outbreak brought such important company interests.
Recently, the Rotterdam Court ruled that a mere reference to the coronavirus outbreak is insufficient. An employer had requested their employee to take 20% of their holidays before July 1, 2020. The court ruled that the mere reference to the coronavirus outbreak, without any further substantiation of "important interests", was insufficient to allow the employer to force the employee to take holidays before July 1, 2020.
The employee can, however, be obliged to take holidays where the possibility of predetermined mandatory holidays is laid down in the employment agreement or collective labour agreement.
Can employees cancel approved holidays?
Due to the coronavirus crisis, many employees have been forced to postpone their holiday plans. However, this does not automatically mean that the employee can cancel the approved holidays.
If the employee wishes to cancel the approved holidays, they will have to discuss the situation with the employer. The circumstances of the case will dictate whether the employer is obliged to agree to such a request or not. The employer must act as a “good employer”, meaning that the employer must have a good reason to reject the employee’s request, for example, because there is no work available or because the employer already arranged a substitute.
Can the employer cancel approved holidays?
The law stipulates that the employer, after consultation with the employee, may cancel approved holidays (or postpone the holidays) where the employer has “substantial reasons” for doing so. The coronavirus outbreak may bring such substantial reasons which can include understaffing due to high absenteeism or a sudden increased demand, in healthcare, for example.
A unilateral change of approved holidays by the employer may cause damages on the employee’s side, such as cancellation fees. In that case, the employer is obliged to compensate the employee for these damages.
Noordam Employment Law has over 25 years of experience with assisting international employees in Dutch employment law. Please call them on 00 31 20 6898 123 if you need any advice on employment issues. This article was written by Arnoud Noordam and Linda Couvreur.