Employers' duty to disclose: how repetition avoids lawsuits
Employers have an increasingly onerous duty to provide information to employees. Whether it is a matter of canceling vacation days, complying with safety instructions or enforcing a zero-tolerance policy: those who are negligent in this regard run considerable legal risks. In this blog, we explain why repetition is crucial and how, as an employer, you can avoid a lot of misery and costs.
Expired vacation days? Not without repeated warning
Statutory vacation days expire six months after the year of accrual. Statutory days are usually subject to a five-year statute of limitations. Yet in practice, this period is not absolute. According to established case law, including the Max-Planck judgment of the European Court of Justice, the employer must actively and repeatedly inform the employee of the impending expiration. If you fail to do so, the vacation days remain intact and you must still pay them out upon leaving employment.
In several rulings, including those of the Court of Appeal of The Hague and the Supreme Court, it appears that it is insufficient to inform employees only once. As an employer, you must be able to prove that you have informed employees annually of the number of days remaining, the time of expiration, and that they have had sufficient opportunity to take those days. Failure to do so can, in extreme cases, result in tens of thousands of euros in back pay.
Work instructions: not only give, but also repeat and record
Employers are required by law to provide a safe work environment. That obligation does not stop at providing protective equipment or setting up a safe workplace. It also includes instruction. Crucial here is that those instructions are regularly repeated and demonstrably shared with employees.
Jurisprudence is increasingly strict about the employer's duty of care. If an accident or injury occurs during work, the employer must be able to prove that he has given and repeated sufficient instructions. Just a one-time explanation or reference to a handbook is insufficient. Make sure that employees participate in instructional moments and record this properly, for example through attendance lists or digital training sessions.
Zerotolerance policy: clear, repeated and consistent
A zero-tolerance policy seems clear: Anyone who steals or frauds is fired. But without repeated communication and consistent enforcement, such a dismissal often does not hold up in court. This is again evident from a recent ruling by the North Holland District Court. An employee was summarily dismissed for taking food from an airplane trolley. The employer invoked the existing zero tolerance policy, which was included in the personnel regulations. Yet the judge ruled that the policy had not been adequately communicated. The employee had to be reinstated and was entitled to wages and travel expenses.
According to the court, an employer can be expected to actively and regularly bring policies of this severity to the attention of the public. This is all the more true when the policy has far-reaching consequences, such as summary dismissal. If it has not been communicated for years, or if it appears in practice that the rules are not being enforced, then the policy works against the employer rather than in his favor. Moreover, the lack of clear and recent communication can even lead to nullification of the dismissal, with all its financial consequences.
Conclusion
Employers would do well not to take their duty to inform lightly. Whether it's preventing lapsed vacation days, keeping staff safe at work or strictly enforcing integrity policies: communication should not be a one-off, but structural and traceable. Put this on the HR agenda annually, have employees sign for receipt of instructions and keep repeating what the rules are and what the consequences are if they are violated. In this way you avoid legal discussions, damages and reputation damage and you maintain control of your own policy.
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 the duty to disclose. Please feel free to contact us .
April 2025
