It is almost July 1 again. That means employees’ accrued but unused statutory holiday days will lapse. When do holiday days lapse? And when does the employee retain their holidays? We explain this below.
STATUTORY HOLIDAYS EXPIRE ON 1 JULY
An employee accrues holidays every year. Days off are accrued as long as an employee is entitled to salary, i.e. even if he or she is ill and continues to receive salary. Each year, an employee is entitled to at least four times the agreed weekly working hours. This means that if an employee works full-time, he is entitled to 20 holidays per year. These holidays are called statutory holidays. If an employee joins during the year, the accrual of statutory holidays is calculated pro rata.
In principle, accrued statutory holidays expire six months after the end of the calendar year in which they were accrued. This means that statutory holidays accrued in 2021 and not taken will expire on 1 July 2022. It is only possible to deviate from this in writing and in the employee’s favour. There are also circumstances where – despite no written deviation from the expiry period – the statutory holiday days still do not expire as of 1 July the following year. It is good to be aware of these circumstances, both as an employer and employee.
BREACH OF EMPLOYER’S DUTY TO PROVIDE INFORMATION ON EXPIRED STATUTORY HOLIDAYS
It is stipulated at European level that an employer has a far-reaching obligation of effort with regard to informing employees about the expiry of statutory holidays. What does the obligation to inform about the cancellation of statutory holidays entail?
An employer must give employees the opportunity to take statutory holiday days. As a result, an employer must inform employees in a timely manner that the employees will lose the untaken statutory holiday days. ‘Timely’ means that the employee is actually given the opportunity to take holidays. Therefore, if an employee has 15 outstanding statutory holidays that expire on 1 July 2022 and an employer informs him about this on 20 June 2022, this is not timely as he cannot take these holidays before 1 July 2022. The employee’s holidays will then not lapse. An employee can rely on this.
Therefore, the statutory holiday days do not expire even if an employer does not inform employees about the expiry of the statutory holiday days. Or if the employee has no idea at all about the expiry of statutory holidays. What is important here is that it is up to the employer to prove that it informed the employee in time. Thus, even if an employee can be expected to be familiar with the regulation of the lapse of statutory holiday days, it is advisable for employers to inform employees annually in writing to prove that the obligation of effort has been met. Employees who leave employment may have a wage claim equal to the value of the wrongly lapsed statutory holiday days if they were wrongly classified as lapsed.
OTHER CIRCUMSTANCES UNDER WHICH STATUTORY HOLIDAYS DO NOT LAPSE
If the employee cannot reasonably be expected to take the statutory holiday days, they will also not expire as of 1 July of the following year. This may include, for example, incapacity for work, busy work, etc. Incidentally, in case of occupational disability, if a sick employee reintegrates, he is also able to take holidays and the holidays can therefore lapse. Only if a sick employee does not reintegrate at the time the expiry period expires will he not reasonably have been able to take the holidays.
EXTRA HOLIDAYS
It is also possible to grant employees additional holiday days on top of the statutory holiday days. These extra holidays are not subject to an expiry period. In principle, extra holidays lapse after five years. The five years begins to run after the end of the year in which they were accrued, so extra holidays accrued in 2021 will in principle expire on 31 December 2026. Moreover, an employee can also choose to have the extra holidays paid out (earlier). What is the value of a holiday day? Click here for the article we wrote about this earlier.
Incidentally, the far-reaching information obligation for employers as described above does not apply to non-statutory holidays.
CONCLUSION
We recommend that employers inform their employees each year in time and in writing about the expiry of statutory holidays. An easy time to do so is at the beginning of each calendar year. For employees, we recommend checking carefully whether your statutory holiday days will actually lapse. This is only the case if you have been informed about this and have also been enabled to take these holidays!
