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A recent decision of the Rotterdam District Court has clarified that "dormant employment" is far from inactive. This ASAP briefly addresses developments that have occurred since our previous post on this issue (click here).
Recap: Dormant employment
Dormant employment exists after an employee has been unable to work for 104 weeks and the obligation to pay salary has ended. Employers often opt to keep the employment dormant because a transition payment is due if they give notice of termination.
Holiday accrual during dormant employment
Although Dutch law links accrual of holiday entitlements to the right to salary, in August 2025 the Gelderland District Court ruled that this is contrary to European law and that employees also accrue holiday hours during dormant employment. European law provides that employees (including incapacitated employees) accrue holiday hours during their full employment, regardless of whether they are entitled to salary. The Gelderland District Court phrased this as follows:
“Sick employees accrue full holiday hours during the entire period of illness and not just during the first two years, regardless of whether they perform work and regardless of whether they are entitled to salary.”
In other words, the mere fact that an employee is employed entitles them to holiday accrual.
Since then, there have been several lawsuits on the question of whether employees accrue holiday hours during dormant employment, with different outcomes. The Noord-Nederland District Court, for instance, ruled that an employee in dormant employment cannot claim paid holidays, since the employee is not entitled to salary during dormant employment. In this regard, the District Court considered that a claim to paid holidays misses the mark, as also follows from European case law.
The legal literature does not paint an unambiguous picture either.
Is the Supreme Court able to provide clarity?
Seeking to settle the discussion once and for all, the Rotterdam District Court submitted the following preliminary question to the Supreme Court:
“Contrary to the provisions of Article 7:634(1) of the Dutch Civil Code, does an incapacitated employee accrue holidays at wage value during dormant employment?”
This is an important question to have answered because there are many employees in dormant employment and employers need a dismissal permit to terminate an employment contract. The dismissal procedure with Employee Insurance Agency UWV takes at least four to six weeks, after which the employer must still observe the notice period. In other words, this takes quite some time and it therefore makes a financial difference for the parties whether or not an employee accrues holidays during this period.
On March 23, 2026, the Supreme Court published the preliminary question on its website, inviting everyone to send in written comments no later than June 5, 2026.
We will keep you posted.
Case:
Rotterdam District Court, March 2, 2026, ECLI:NL:RBROT:2026:2021
Link: https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:RBROT:2026:2021
Other decisions:
Gelderland District Court, August 12, 2025, ECLI:NL:RBGEL:2025:7054
Link: https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:RBGEL:2025:7054
Noord-Nederland District Court, December 19, 2025, ECLI:NL:RBNNE:2025:5517
Link: https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:RBNNE:2025:5517
CJEU C-762/18 and C-37/19, June 25, 2020, EU:C:2020:504
Link: https://eur-lex.europa.eu/legal-content/NL/TXT/?uri=CELEX:62018CJ0762
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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