A production employee is on long-term sick leave. At the end of employment, discussion arises about the remaining leave balance. According to the employer, it is 61 hours negative and according to the employee, 131 hours positive. Point of dispute is whether the employer was right to deduct the holidays due to collective company closures during the summer and Christmas from the employee's leave balance. How does the court rule?
Employee's point of view
The employee argues that he did not agree in writing to surrender leave days for the collective company closures. However, this written consent was required by law. To the extent that it had already been agreed in writing that the employee would take annual leave days in the summer and around Christmas because of a collective company closure, the employer should have explicitly asked for permission again, because of the employee's illness, to count those days as leave days instead of sick days. This was not done. Therefore, the employee did not give permission for this.
Employer's position
The employer argues that the company is always closed for three weeks during the summer period. No one works then. The same applies to the Christmas period. These collective company closures have been a permanent part of company policy for years. The agreements on taking leave during the collective company closures had already been made before the employee fell ill.
Judge's considerations
The employer claims that collective company holidays were agreed upon. According to the employer, collective company holidays in the summer and around Christmas have been an established part of company policy for years. The employer did not substantiate this claim with documents. There is no evidence of a written agreement on the alleged collective company holidays.
Even if the employer showed a written agreement on collective company holidays, it would still not be there. This is because in this case, the employee was sick during the periods under discussion between the parties. Then the special rules on taking holidays by a sick employee apply.
The employer argued that the agreements on a collective company holiday were in place before the employee fell ill. This does not show that it was agreed that collective company holidays would also count as holidays for a sick employee. The employer did not argue that either. Moreover, such an a priori agreement could only apply to holidays in excess of the statutory requirements. Nor does it appear that in this case - i.e. when the summer and Christmas closures were imminent - it was agreed with this employee that holidays would be written off. And the consent of a sick employee to count sick days as holidays is required.
Judge's ruling
Since it has not been stated or shown that the employer made an agreement with the employee that the collective company closures would be considered holidays even during his illness, the court grants the employee's claim for payment of holidays.
The employer must pay the outstanding leave hours worth over €2,300, plus statutory increase of 10% on this and statutory interest to the employee.
Note: If the employer wishes to count sick days as holidays, the employee's consent is required at all times, even if it is the usual company closure. The burden of proof of this consent lies with the employer.
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