Fortunately, it is all behind us now, but we still remember it well: the compulsory closure of certain industries during the corona pandemic. This led to many employees receiving “minus hours”, which employers were eager to set off. This also applies to the case we are discussing this week.

Facts

The case concerns an employee who worked at the home furnishing shop “Het Wooncentrum” and who terminated her employment contract on 31 October 2021. Het Wooncentrum subsequently set off a number of minus hours against the employee's holiday allowance. Those minus hours had arisen at the time of a (necessary) company closure during the corona pandemic.

The employee did not agree with this and argued that the set-off was not allowed. Her former employer however is of the opinion that this is allowed, because they have made agreements about this with the personnel. In short: this case is about whether the employer was allowed to set off the reduced hours against the holiday allowance or not.

Judgment of the Subdistrict Court

On the basis of Section 7:628 (1) of the Dutch Civil Code, the employer is obliged to pay the salary if the employee has wholly or partially failed to perform the agreed work, unless that complete or partial failure to perform the work should reasonably be at the employee's expense.

This provision therefore addresses the question of who bears the risk of non-performance of work and, in principle, places this risk on the employer. The Subdistrict Court put first and foremost that the corona crisis and the course of it were unpleasant and unforeseen for both parties. For Het Wooncentrum because the shop had to be closed pursuant to government measures, and for the employee because she could not perform her work as a result.

The fact that Het Wooncentrum had to close the shops and her employees could not work is a circumstance which is within the sphere of risk of the employer. Therefore, the employee retains, in principle, her right to salary. The argument of Het Wooncentrum that the employee had agreed to a set-off of the reduced hours of work did not stand up. The Subdistrict Court did not doubt that Het Wooncentrum wanted to do the right thing for its employees, but it should nevertheless not have automatically assumed that the employee as an individual would (tacitly) agree to the settlement proposal made by Het Wooncentrum.

There is nothing to indicate that the employee agreed to the proposal to set off the reduced hours against her holiday allowance. The agreement cannot be substantiated. It cannot be said that there has been an offer that was accepted.

You can read the full judgment here.

Conclusion

In this case, the employer drew the short straw because set-off was not allowed. In other situations as well, employers and employees would do well to find out what is allowed when offsetting certain items against salary and holiday allowance. SPEE advocaten & mediation will be happy to help you on your way.