18 March 2025
What are the rights and obligations of employees who wish to go on holiday while on sick leave? In this blog, we explain the legal rules, the role of the company doctor, and the possible consequences if a sick employee goes on holiday without permission.
We previously wrote about taking holiday leave during illness following a Dutch Supreme Court ruling on November 17, 2023, case number ECLI:NL:HR:2023:1603. The main conclusion from that ruling is that an employee who is fully unfit for work (and therefore has no reintegration obligations) is not required to use vacation days in order to take a holiday. But does the employee still need to ask the employer for permission to go on holiday, or can they simply leave?
To answer this question, we first need to look at Article 7:638 of the Dutch Civil Code. According to this article, the employer must approve the employee’s holiday in line with the employee’s wishes, unless there are serious business reasons to refuse. This means the employee must request permission. If the employer does not respond in writing within two weeks, the holiday is approved according to the employee’s request.
The employee must request permission from the employer, and this also applies to employees who are off sick. However, an employer will usually not have strong reasons to refuse a sick employee’s holiday request, especially when the employee is fully unfit for work, since they are not performing any duties. Therefore, business operations cannot be used as an argument to deny the request. The only valid reason an employer might have is if the holiday would hinder the employee’s recovery.
To clarify this, the employer can consult the company doctor. The doctor can assess whether the holiday would interfere with the employee’s recovery. The company doctor might even conclude that a holiday could benefit recovery and may include this in a written recommendation to the employer. It is therefore always wise to discuss holiday plans with the company doctor during sick leave.
What if the employer refuses the holiday without a valid reason and despite a positive recommendation from the company doctor?
The Supreme Court has previously ruled that employers cannot unreasonably deny such requests. In this situation, the employee would have to initiate legal proceedings to force the employer to approve the holiday, which could take time and incur legal costs.
Can the employee just go on holiday without permission? While this is an option, it is not advisable, as it could lead to conflict with the employer and carries certain risks, explained below.
A sick employee who goes on holiday without permission risks disciplinary action. A written warning is the most likely response, but the employer could also temporarily suspend the employee’s salary. Dismissal is less likely. Although dismissal due to a breach of reintegration obligations is possible, case law shows that less severe measures, such as a warning or wage suspension, must be taken first. Dismissal solely for going on holiday while sick would likely not hold up in court unless other factors are involved.
It is always wise for employees to communicate openly and clearly with their employer. Efforts to obtain permission should be documented in writing to avoid misunderstandings later on. If you decide to go on holiday without permission, be sure to inform your employer of your plans and the dates. A sick employee who leaves without informing the employer would be acting in violation of Article 7:638 of the Dutch Civil Code, as explained earlier.
Even an employee who is fully unfit for work must request permission to go on holiday. In many cases, the employer will not have a reasonable basis to refuse the request.
Are you facing challenges with your employer or employee? The employment law team at GMW lawyers is ready to assist. If you have any other questions, feel free to contact us.
