Originally published February 2010
Change In The Working Conditions Act
The Working Conditions Act aims to prevent and/or minimise any physical/mental damage suffered by employees in the performance of their duties. This explicitly includes physical/mental harm caused by stress factors at the workplace ("Psychosociale arbeidsbelasting").
As of 1 August 2009 the Working Conditions Act has been changed to the effect that it now explicitly states that discrimination is to be considered one of such stress factors. The definition of discrimination in the Working Conditions Act concurs with the definition included in the Dutch Equal Treatment Acts.
In view of the explicit qualification of discrimination as a stress factor, companies are well-advised to arrange for a policy preventing and/or minimising discrimination at the workplace.
REPORTED CASE LAW
Accrual Of Vacation Days During Sickness
The Dutch Civil Code provides that an employee who is unable to perform his duties due to sickness will only accrue vacation days over the last six months of inability for work. If an employee is partly unfit for work and still performs some duties for the company, the employee will accrue vacation days solely over the days actually worked.
In a recent decision, the European Court of Justice ruled that, on the basis of a European directive, in respect of the accrual of vacation days no distinction may be made between healthy employees and employees unable to perform their duties due to sickness.
European directives may in principle only be invoked against the Dutch government, i.e. not by Dutch employees against their private employer. On 10 November 2009 the Amsterdam appeal court therefore rejected an employee's claim for accrual of vacation days over the entire period of sickness. The above implies that (only) the Dutch legislator can take appropriate action by changing the relevant Dutch law provisions.
However, on 14 October 2009 (i.e. shortly before the abovementioned ruling of the Amsterdam appeal court) the sub-district court in Utrecht ruled in a similar case that under the given circumstances, the company, as a 'good employer', could not rely upon the Dutch legislation. As a consequence, the employee in question was entitled to accrual of vacation days during her entire period of inability to work. In light of the above, companies are well-advised to anticipate possible claims to be made by employees who have been unable to perform their duties due to sickness for a long term, by making a financial provision in that respect.
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.
