Netherlands: Accrual Of Vacation Days During Sickness (Update)

In our newsletter of February 2010 we referred to a recent decision of the European Court of Justice on the accrual of holiday days during sickness. In this decision the Court ruled that, on the basis of a European directive, in respect of the accrual of vacation days no distinction can be made between healthy employees and employees that are unable to perform their duties due to sickness. We reported that Dutch law did, however, make such a distinction and was therefore in violation of the directive.

Furthermore, we pointed out that European directives may in principle only be invoked against the Dutch Government and not by Dutch employees against their employer. We concluded that only the Dutch legislator could take appropriate action by changing the relevant Dutch law.

In the meantime, the Dutch legislator has taken action by preparing draft legislation on the same subject. The draft legislation prescribes an equal accrual of holiday days for healthy employees and employees that are unable to perform their duties due to sickness.

Furthermore, the draft legislation shortens the period over which (both healthy and sick) employees may take their statutory holiday days. In The Netherlands, an employee will accrue a number of statutory holiday days equal to four times the agreed period of work per week (e.g. 20 vacation days per annum in case of full-time employment). Currently, holiday days can be carried over for a maximum period of 5 years (statutory and contractual). The draft legislation now provides for annual leave to be carried over for a maximum of 18 months, unless parties agree upon a longer period. Since this shortened time limit will not apply to contractual vacation days (any annual leave granted in excess of 20 in the above example), the longer period of 5 years will remain applicable to those additional days.

Hidden camera surveillance

When an employer seriously suspects misconduct, he may consider the selective use of hidden cameras in the workplace in order to check and monitor behaviour. The use of hidden cameras is, however, subject to certain restrictions.

Restrictions

Since the use of hidden cameras is an infringement of an employee's privacy in the workplace, it can only be justified when:

1. such use is proportionate to and essential for the monitoring of the alleged misconduct;
2. the images obtained from the hidden cameras will only be used for the purpose for which they were obtained;
3. employees have been informed of the possible use of hidden cameras;
4. employees whose misconduct has been recorded will be notified of this afterwards and will be allowed to watch the images.

Please note that if an employer infringes the second and/or third provision, this may constitute a criminal offence.

The consent of the Works Council may be required when implementing, altering or revoking regulations that deal with the monitoring of employee behaviour.

Evidence obtained through the (unlawful) use of hidden cameras will, in spite of the above, only in very rare cases not be admissible in Dutch labour courts. Usually such courts will accept the evidence irrespective of the way in which it was obtained.

In view of the above, employers are well advised to consult a lawyer prior to using cameras for the collection of evidence.

Increase of the statutory minimum wage and minimum youth wage

All employees between the ages of 23 and 65 years are entitled to a statutory minimum wage. Employees younger than 23 years old are entitled to a statutory minimum youth wage. The minimum youth wage is calculated as a percentage of the minimum wage for employees of 23 - 65 years.

With effect from 1 July 2010, the amount of the minimum wage and the minimum youth wage was increased by 0.6%. For ease of reference, the following table sets out an overview of the minimum (youth) wage.

Statutory minimum wage and minimum youth wage with effect from 1 July 2010 (in EUR)

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.