Holidays while off sick: consent required!

If you, as an employer, decide to recognise days off sick as holidays, this is dependent upon the consent of your employee. In the absence of such consent, an employer runs the risk that the employee will claim payment for these holidays. The Appeals Court in Den Bosch recently handed down a judgement in such a situation that did not turn out well for the employer. Read more...

 

Options for the employer
There are two ways in which an employer can classify days off sick as holidays. First, the employer can (in advance), on the basis of a written agreement or through the CAO, agree with the employee that (a number of) sick days will be classified as holidays. A second possibility is that an agreement is made with the employee, that if they are actually on sick leave, certain of these sick days will be classified as holidays. This last option does not need to be agreed in writing although in practice this is recommended. An important condition applying to both options is that the employee retains the statutory minimum number of days off. Classification of days sick (as holidays) can therefore only refer to days in addition to statutory leave. In the following case an employer called on the employee for their consent.

 

Facts
The employee worked for the employer as from 1 May 1987 until 22 September 2007. From 25 April 2005 up to and including 4 October 2005, the employee reported sick. During the period as from 25 July 2005 up to and including 14 August 2005, the employer closed the company for holidays. During that holiday period the employer classified 15 days as holidays and deducted these holidays from the employee's holiday pay. The employee claimed payment for this 15 days of holiday. The subdistrict court ruled in favour of the employee.

 

Appeal
The employer puts forward a number of arguments against the judgement of the subdistrict court. First of all, the employer states that the employee has given his consent because the CAO makes reference to the closure of the company for company holidays which, in consultation with the employees, were agreed upon at the beginning of the year, and the employee has not made any objection to this. By not having protested against this arrangement the employee has explicitly or implicitly agreed that days off sick should be classified as holidays during the company holiday. The employer also states that the CAO must be regarded as a written agreement between employer and employee whereby the employee gives his consent for days off sick being considered as holidays.

 

The court gave short shrift to the employer's defence. According to the court, it is not clear that the employee had, at the time he was sick, given his consent for the days off sick to be classified as holidays. The fact that the employee has agreed with a company holiday as set out in the CAO was insufficient. It is required that the employee, at the moment the company holiday commences, has consented that his days sick are being classified as holidays. The second argument also failed. The conclusion can not be drawn that the CAO serves as a written agreement whereby the employee has given his consent for days sick to be designation as holidays based on the fact that the CAO refers to a company holiday and the employee has assented to said holiday.     

 

Assessment
The verdict shows that there should be no jumping to conclusions concerning consent by the employee. What can you do as an employer? As stated, there are two options.

           

1) You can agree in advance  by written agreement that, in the event of sickness, days off sick will be considered to be holidays insofar as these holidays are additional to statutory minimum leave. As the case showed, if any uncertainty exists, the court will not readily presume that an employee has given its consent. Despite that, in practice, a stipulation referring to the designation of days sick as holidays is seldom included in the employment contract. Such an agreement offers however a number of advantages. The stipulation contributes to preventing a large reservoir of holiday leave and to the employee lightly reporting sick. Perhaps something to consider, as an employer, in drawing up an employment contract.

 

2) The employer makes a clear agreement with the employee that, in the event of sickness during a particular company holiday, days sick will be classified as holidays. Only determining the company holiday is insufficient. It is obvious that an employee will not readily go along with this. An employee may agree to it should they be confronted with a day's waiting time or if the employer is only prepared to pay 70% of salary during sickness. By classifying sick days as holiday, salary will be paid at the full rate.

           

For more information about holidays, we refer you to articles that have appeared in earlier editions of this newsletter.