Introduction
Vacation days are meant for rest and recuperation, but what about when an employee is sick for an extended period of time? Do those days then automatically lapse, or do they remain? And may an employer simply count sick days as vacation days? A recent ruling by the North Holland District Court examined this issue. The case shows that employees remain entitled to their vacation days during illness unless strict conditions are met.
The situation: long-term illness and end of employment
This case involved a courier who was on long-term disability. After two years of illness, his employment contract was terminated. During his illness, he had not taken any days off. According to the collective bargaining agreement, he was entitled to 20 days of vacation per year, and he wanted these paid out at the end of his employment.
However, the employer argued that part of the statutory days had lapsed, and that the employee had already been advised of the importance of recording for the remaining days. The employee allegedly disregarded that advice. The subdistrict court ruled otherwise.
Sick days may not simply be written off as vacation
The judge emphasized that sick days cannot be automatically converted into vacation days. This is only allowed if the employee expressly agrees. Even if an employee requests a vacation himself during illness, that does not mean that he has agreed to use those days. The employer must be able to prove that the employee unequivocally agreed to use his vacation days during illness. That evidence was lacking.
Vacation expiration period requires active attitude of employer
Statutory days entitled to vacation expire six months after the year in which they were accrued. Yet this lapse does not automatically apply if an employee is long-term sick. The employer must show that:
- the employee has been enabled to take the days, and
- he was thereby made aware of the risk of lapse if not used.
In this case, the employer could not make it clear in what way it had actually encouraged the employee to use his vacation days. Nor did it appear that the employee had been properly informed of the expiration of his vacation entitlement.
Ruling: payment of unused vacation days
Because there was no consent to the use of vacation days during illness and the employer could not prove that the vacation days had rightfully lapsed, the employee was vindicated. The subdistrict court awarded him gross compensation of approximately €5,800 for unused vacation days.
Conclusion
This ruling underscores that vacation days during illness are not simply lost. Employees retain their right to vacation unless they explicitly agree to be written off or are properly informed of its expiration. Employers would be wise to properly record this and inform their employees in a timely manner. It is important for employees to know that they can keep their vacation days even during illness and have them paid out upon termination of employment.
This blog was written by mr. Stijn Blom, employment lawyer at Arbeidsadvocaat.nl B.V. Stijn has extensive experience in employment law and supports entrepreneurs and employees on a daily basis with a variety of employment law issues. From dismissal cases to drafting watertight contracts and regulations - with his practical and personal approach, he helps employers and employees move forward. Want to know more? Visit Stijn's page.
Arbeidsadvocaat.nl is happy to think with you if you have questions about days off. Please feel free to contact us .
April 2025
