Many of your employees will probably be going on holiday this summer. While they are enjoying some rest and relaxation, you as an employer might have to deal with a number of issues during the holiday period. Are you, for example, allowed to go into your employee’s mailbox if he or she is on holiday and what can you do if an employee goes on holiday without permission? In the weeks ahead, we shall be providing you with an answer to this and other holiday-related questions arising from employment law.
Question 1 - An employee has taken too many days off and is now leaving his job. Am I allowed to deduct money for these days?
This can only be done under specific circumstances.
The employer may only offset its claims on the employee using the latter’s wages during the period of employment in cases that are listed under the law (Article 7:632 Dutch Civil Code). The law does not make any provision for offsetting claims at the end of the employment contract, so it could be concluded that the employer may offset anything in such a case, including holidays that the employee has taken in excess of his or her holiday entitlement. Although many employers do this, case law demonstrates that holidays that the employee has taken in excess of his or her holiday entitlement at the end of the employment contract may only be offset if, in summary, the employer has entered into agreements on this beforehand with the employee (see, for example, ECLI:NL:RBHAA:2010:BL5607).
To avoid any potential conflict, it is advisable to make provision in the employment contract (or in an addendum to the employment contract) for negative credit of days off to be offset at the end of the employment contract. If nothing is stated about this in the existing employment contract and the employee wants to take too many days off at any one time, it can, of course, also be agreed in writing at the same time as the holiday is approved that the holidays that the employee has taken in excess of his or her holiday entitlement will be offset at the end of the employment contract.
Question 2 - Do I have to pay holiday allowance for overtime?
No, but this will become mandatory by 1 January 2018.
In Article 6 of the Dutch Minimum Wage and Minimum Holiday Allowance Act (WML), income from overtime is excluded from the wage definition. The employer does not therefore need to pay any holiday allowance for overtime pay. As of 1 January 2018, holiday allowance will no longer be excluded, however, from the wage definition and the employee will therefore be entitled in principle to holiday allowance for overtime pay. This change has been made because as from this date, the employer will have to increase the minimum wage pro rata for the extra hours (also referred to as additional work or overtime) or, if this has been agreed in a CLA, compensate for it with paid time off.