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cityguru
cityguru, Solicitor
Category: Employment Law
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Experience:  Senior lawyer with 30 years experience
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Scenario: employee had UK contract of employment. Employee

Resolved Question:

Scenario: employee had UK contract of employment. Employee is seconded to the Netherlands and an addendum is added to Uk contract to cover the secondment. Secondment lasts around 3 months, then employee is asked to remain permanently in the Netherlands and a Dutch contract of employment is provided and signed from 1 Dec.
Employee is now claiming a vacation allowance of 8% of average gross salary (paid from 1 June to 31 May the following year) according to Netherlands law and her Dutch contract, from the beginning of her secondment whilst she was still employed under her UK contract. She is using the Secondment Directive (Directive 96/71/EC) as the basis for this request.

"2. Minimum paid annual holidays [Article 3(1)(b) of the Directive]
Minimum paid annual holidays are laid down in Art.634 t/m 642, 645 Book 7 Civil Code (Dutch: Burgelijk Wetboek, BW). Employers must allow their employees to take the minimum leave to which they are entitled each year (cf. Civil Code, Art. 7:638). The statutory minimum (annual leave) is four times the amount of working hours per week (so, for a fulltime job of 40 hours the statutory annual minimum is 20 days or 160 hours). The statutory minimum leave can never be paid out. The Dutch Civil Code Article 640, paragraph 1 is also clear on this: the general leave an employee is entitled to, will never be paid out. Hours and days above the statutory minimum may be paid out. This is in accordance with Article 7 of the Council Directive 2003/88/EC, on certain aspects of the organisation of working time. Unused leave entitlement lapses after a period of five years (cf. Civil Code, Art. 7:642). Except in the case of a holiday shut-down period, employers must respect their employees‟ wishes in this regard, unless important business considerations militate against it. In that case, the employer is obliged to ensure that the employee can take a period of leave of two weeks consecutive, or – with the employee‟s consent – two one-week periods. Employers also have an obligation to respond promptly to their employees‟ requests for leave. If an employee has communicated his preferences and the employer is unable to approve them, he must provide compelling reasons for this refusal within two weeks; otherwise the leave will be assumed to have been scheduled in accordance with the employee‟s wishes. It is not possible to depart from this two-week period other than by written agreement, and any such exception may only apply to leave days due to the employee over and above the statutory minimum. Employers must allow employees to take their leave in days or hours if they so wish, unless there are compelling reasons not to do so. The minimum payment of holiday allowance (which exists alongside to the right to payment of wages during holidays) is laid down in Art.15 WML. "

Question: do the terms of the UK contract prevail during her secondment period whereby no vacation allowance is paid or does an EU Directive take precedent and a payment must be paid to the employee from the outset?
Submitted: 3 years ago.
Category: Employment Law
Expert:  cityguru replied 3 years ago.
Thanks for your question. I am afraid at the moment , I cannot see form your post the basis of the employee's claim. The secondment directive requires workers to have the same terms as the local workforce in certain specific rights including paid holiday but the UK legislation has already implement all the EU directive on compulsory paid holiday and a full time worker is entitled to 27 working days ( more than 20 as you suggest) and also as you suggest makes it clear that pay in lieu of holiday is not a requirement.

If she was employed by an UK company on an UK law contract then on the face if it she is not entitled to bring a claim under dutch law and directives are not " direct acting in the UK so she would need to rely on UK implementation. In fact the UK has never implemented the directive because it is unnecessary because UK employment law applies equally to all workers here.

However it is possible that dutch law requires the directive to apply to all employees in the Netherlands so she is entitled to treatment at least as favourable as the local workforce.

Does the employer actual have a local business against whom a claim could be made in the Netherlands?

I do not believe a claim would succeed in the UK but it might in the Netherlands if there is an entity against whom a claim could be made.

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