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Holiday and corona: what about the right to pay?11-08-2020

The holidays have started. What about wages when an employee goes on vacation to an area with a yellow, orange or red travel advice?

Until January 1, 2020, the main rule in Dutch emploment law was: “No labor, no wages”. An exception to this main rule, so no work, but continued payment of wages, was if the employee had not been able to perform the agreed work due to a reason that should reasonably be for the account of the employer. Not being able to work as a result of an event during the holidays (with the exception of illness) was not a reason that was reasonably for the account of the employer. The employee's inability to return from vacation therefore had to be compensated for by taking extra vacation days or unpaid leave, for example.

Since January 1, 2020, this main rule has been changed to: “No labor, but wages”. This unless the cause for not (being able to) perform the work must be for the employee's account. In the old situation, the employee had to demonstrate that the non-performance of the work was at the employer's risk sphere. Since 1 January 2020, the employer must demonstrate that non-performance of the work is within the employee's sphere of risk.

When it comes to holiday destinations in corona time, we look at the travel advice from the Ministry of Foreign Affairs, indicated by the colors green, yellow, orange and red.

Code red

Code red does not recommend traveling to the country in question. In this blog we assume that employees will not travel to an area with code red.

Code orange

Code orange does not recommend traveling to those countries, unless it is really necessary. Holiday trips do not fall under necessary trips. If someone does go, it is urgent advice from the national government to quarantine for two weeks immediately upon returning to the Netherlands.

The employee who consciously chooses to go on holiday to a country with code orange therefore knows that he will have to be quarantined after returning. If the employee is unable to work from home, he will be unable to perform his duties for two weeks. We believe that it can be said that this situation lies within the employee's sphere of risk. We advise employers to inform the employee (if the holiday destination is known) in advance that during the quarantine period he is not entitled to wages if he is unable to perform his work. Employees who are able to work from home (and probably have done so recently) are entitled to wages during a period of quarantine.

Can an employer ask an employee if he plans to go to an area with a code orange area, or on return whether the employee has been in a code orange area? That is allowed. The employer has an interest in that information in connection with the duty of care for the employee in question, for the other employees and for any visitors (customers / patients) of the company.

As stopping wages is a heavy measure, we advise employers to inform their employees in advance (for example via a travel protocol) in writing of the consequences that the employer wants to attach to going on holiday to a country with code orange if the employee is consequent cannot perform his work.

Code yellow

Code yellow means that there are security risks in this country or region that differ from what we are used to in the Netherlands. However, an employee can, without prejudice to the local rules, go on holiday to a country with code yellow. Since June 15, 2020, most European countries have a yellow travel advice.

If the situation changes during the employee's holiday; for example, code yellow becomes code orange, so that the employee still has to be quarantined after return, this will probably not be in the employee's sphere of risk. Travel to those countries is justified. That could be different if it was expected in advance that the code would change from yellow to orange.

Code green

There are no special security risks with code green and you can travel to that country without any problems.

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It is important that it is clear to employees in advance what the consequences may be of traveling abroad in corona time. Do you have any further questions or would you like to draw up a travel protocol? Please do not hesitate to contact us.

Liesbeth Zwitserlood

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The Dutch Whistleblower Protection Act, that replaces the former Dutch Whistleblowers Authority Act, strengthens the protection of whistleblowers and has important implications for employers. For most parts the law has even direct effect for employers with 249 employees or more. Employers with 50 to 249 employees are subject to a transition period until the17th of December 2023 to comply with the law. Therefore, employers for employers who have not updated their internal reporting procedures yet, must come into action. We have listed the most important changes for you.

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On 5 July 2022, Minister Van Gennip (SZW) set out the government's plans for a future-proof labor market, including a (large) number of important plans in the field of employment law. These plans will be elaborated in bills at the beginning of 2023. In broad terms they are summarized in this blog.

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We have listed the most important (upcoming) legislative changes for you.

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These days, it is common for employees to make negative statements about their employer on social media or to express themselves in a way that is contrary to the nature of the employer’s business or company. Can the employer undertake anything against such negative statements? Yes, they can. Statements on social media are regularly a subject of dispute in court proceedings. Below I will briefly discuss two recent judgments where the employer had requested termination of employment as a result of statements on Facebook.

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05-11-2021Dismissal due to regular sickness absence often unsuccessful

Article 7:669 paragraph 3 sub c of the Dutch Civil Code lists the grounds that an employer can submit to the UWV or the subdistrict court judge to terminate the employment contract. One of these grounds is “regularly unable to perform the stipulated work as a result of illness or defects of the employee with unacceptable consequences for the business operations…”.

On September 3, 2021, the District Court of The Hague ruled in a case in which the employer based the request to terminate the employment contract on this ground. The ruling shows why a dismissal on this ground often has no chance.

What was going on?

The employee has been working as a car technician at a car dealership with several branches in the Netherlands since 2013. He was employed at a local facility and was part of a team of five employees working in the workshop. In 2017 he had called in sick 4x (104 hours in total), in 2018 8x (173 hours in total), in 2019 23x (468 hours in total) and until July 10, 2020 13x (400 hours in total). The employer had requested an expert opinion from UWV and it followed from that opinion that UWV was of the opinion that there was frequent absenteeism and that this situation was expected to last longer than 26 weeks.

What did the court rule?

The court first establishes that there is frequent absenteeism within the meaning of article 7:669 paragraph 3 sub c BW. The follow-up question is whether this absenteeism leads to unacceptable consequences for the employer's business operations. According to the court, that is not the case. The employer had stated that customers would be dissatisfied with the workshop activities of the branch, but could not substantiate this, according to the court. In addition, the court considers that a company of a size such as that of this employer (with several branches in the region and throughout the Netherlands) can in principle be expected to take care of absenteeism company-wide. The fact that it is not possible within its organization to provide replacement from another location, because there is a large group with all kinds of different car brands and a mechanic who works for one car brand at one location is not as easy as a mechanic can work for the other. According to the court, a different car brand at a different location has not become plausible. The employer was also unable to demonstrate that there was a (serious) financial disadvantage. The court therefore rejected the request for dismissal.

Conclusion

This court decision once again makes clear that – certainly for larger employers – it will not be easy in the Netherlands to dismiss an employee on the basis of frequent absenteeism. Proof of the high level of absenteeism due to illness is often not the problem, but proof of the unacceptable consequences for the employer's business operations is often an unviable route.

If you have any questions about absenteeism and dismissal, please do not hesitate to contact one of the specialists at Van Bladel Advocaten via (+31) 030-2203111 or info@vanbladeladvocaten.nl

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Although the scheme has yet to be worked out in detail - which is expected to happen within the next two weeks - the following is known:

 

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