- 13 May 2019
- Claire Vogel
A condition for the lapse of holiday entitlements is that employees have actually had the opportunity to make use of their holiday entitlements. The Court of Justice of the European Union ruled at the end of 2018, that employers have an active duty to provide information and to enable employees to make use of their holiday entitlements. If the employer does not comply with these obligations, statutory holiday entitlements will not lapse after a six-month period. It still remains the question whether these days will lapse at any time in the future. This obligation may also apply to the expiration of extra-statutory holiday entitlements.
The Dutch court has not yet expressed a view on this, but this only will be a matter of time. These rulings of the Court of Justice do not imply a legal obligation to make use of holiday entitlements, but an obligation for employers to actively enable employees to make use of their entitlements and to inform them about their entitlements. It is important that an employer is transparent with regard to the employee’s holiday balance. The employee must not only be given the opportunity to make use of the holiday entitlements, but must also be informed about the expiration of the holiday entitlements. According to the Court of Justice, the mere fact of having a holiday registration system, where employees can review their holiday balance, is insufficient.
We recommend employers to share an annual and timely overview with individual employees - for example in the month January - in which the number of outstanding holidays is included and when these entitlements will lapse if the holidays have not been used in time. In case the employee still does not make use of his holiday entitlements, the employer can prove that the information and duty of care obligations have been met.