The summer holidays have begun, and every year this brings interesting discussions about how many vacation days employees still have left. Recently, following a ruling by the Supreme Court, there have been some changes to the rules regarding the expiry of vacation days that exceed the statutory minimum.

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At the end of last year, I wrote a blog about whether an employee can (just like that) carry over their unused vacation days to the following year. This is the case, especially when the employer does not take an active and encouraging role when it comes to taking statutory vacation days.

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Based on European regulations and case law, the principle is that statutory vacation days expire six months after the end of the previous year, provided that the employer can demonstrate that they encouraged the employee to take their vacation in a timely manner. The employee must also be notified in time that their statutory vacation days will expire if they do not take them soon. If the employer fails to do so, the statutory vacation days will not expire.

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In the same blog, I also wrote that the Dutch rules on the expiry of extra-statutory vacation days are different. The six-month expiry period and the European rules on the employer's active attitude only apply to statutory vacation days and not to extrastatutory vacation days.

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This means that fort he extra-statutory vacation days, only the general rules on limitation periods apply, which in the Netherlands is five years. At least, that was the case until a few weeks ago. Recently, the Supreme Court has given a different interpretation.

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Active duty of care and information

On June 23, 2023, the Supreme Court ruled that in determining whether extra-statutory vacation days expire (after five years), it is also important that the employer fulfills an active duty of care and information. This case concerned a lawyer employed by a law firm. Since 2018, there had been a dispute between the employer and the employee about the balance of unused vacation days. The conflict escalated to such an extent that it caused a disruption in the working relationship and ultimately led to the lawyer being suspended. Ultimately, the lawyer and the law firm ended up in court to terminate the employment contract, and in the same dissolution proceedings, the lawyer also claimed payment of a high balance of unused statutory and extra-statutory vacation days.

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Encouraging employees to take days off

However, the employer felt that the balance of vacation days in excess of the statutory minimum had long since expired due to the expiry of the five-year limitation period. The employer argued that the active attitude that can be expected from employers to encourage employees to actually take their vacation days only applies to statutory vacation days and not to extra-statutory vacation days, based on European rules.

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“The right to take vacation days is so important”

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Nevertheless, the Supreme Court sees it differently. The right to take vacation days is so important that even for extra-statutory vacation days, the five-year limitation period does not apply if the employer has not actively and consciously enabled the employee to actually take those vacation days. If the employer fails to do so, the Dutch five-year limitation period is simply set aside.

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Practical implications

What exactly does this mean in practice? During the course of their employment, employees will often be less likely to object to the expiry and limitation of vacation days. Nine times out of ten, they will only do so at the end of their employment, when it is no longer possible to retroactively comply with the duty of care and information. It is therefore very important that company policy and work protocols are properly organized for this purpose. Within the HR department, it should be standard practice to regularly inform employees in writing not only about their vacation day balance, but also about the options for when they can take these days off.

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“If the employee does not take their days off, the employer must make suggestions.”

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In other words, if the employee does not take their vacation days on their own initiative, the employer must (at some point) make proposals for periods in which this would be possible. If the employee ultimately still does not cooperate, they must be clearly and repeatedly informed that this will result in the forfeiture and expiry of their vacation days.

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This means that it is no longer sufficient to provide an overview of the balance of vacation days once a year and simply state that these days will expire or lapse if they are not taken within a certain period. I therefore recommend informing the employee about this once every quarter.

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