International Employment Update: New Legislation (The Netherlands) - February 2010

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...