Due to the coronavirus many employers and employees are uncertain about how to handle the issue of holidays. On the one hand employees are forced to postpone their holiday plans. On the other hand many employers do not have sufficient work available to keep the 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. What can employers and employees expect from each other?
Can employees be obliged to take holidays?
In principle, an employer cannot oblige the employee to take holidays. 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 in a ‘recovery’ period.
In the event the employee refuses to agree with such request, under circumstances the employer can oblige the employee to take holidays, but only if the employer has an “important interest” of doing so. The coronavirus outbreak may bring such an important interest. The employer must be able to substantiate why the coronavirus outbreak brought such important interest. Recently the Rotterdam Court ruled that a mere reference to the coronavirus outbreak is not sufficient.[1] The employer had requested the employee to take 20% of their holidays before 1 July 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 1 July 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?
In the press conference dated March 31st 2020 Prime Minister Rutte requested that people not make holiday plans for the coming May holidays. Therefore, many employees have been forced to postpone their holiday plans. This however does not automatically mean that the employee can cancel the approved holidays.
If the employee wishes to cancel the approved holidays, he/she 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, for example in healthcare.
A unilateral change of approved holidays by the employer may cause damages on the employee’s side, for example cancellation fees. In that case the employer is obliged to compensate the employee for these damages.
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[1] Rotterdam Court 29 May 2020, ECLI:NL:RBROT:2020:4731.