The case
A woman (now 66) has been working in a shop since 1976, according to her employer. According to her employer, this has only been the case continuously since 2006. She will be absent from work on July 30, 2023 and will remain incapacitated for work. Her employer continues to pay her wages for the mandatory 104 weeks and writes to her on August 21, 2025 that the employment contract will end on July 27 of that year. A final settlement follows, the woman receives a transition payment and the accrued vacation days are paid out.
The woman does not agree with the amount of the transition payment. The employer has assumed an employment contract of nineteen years, but according to her, thirty years should be added. She also states that after those two years of illness, she still accrued vacation days during the so-called dormant employment contract. This is what it is called when the employer no longer has any wage or other obligations, but has not yet terminated the employment contract. They cannot reach an agreement and the dispute ends up in the Rotterdam court.
The statement:
preliminary request to the Supreme Court
The subdistrict court judge is faced with various questions. Firstly: is there termination and, if so, when? The employer terminated the employment contract with the letter dated August 21, 2025, so yes. But this cannot be done retroactively, so it does not apply as of July 27. Nor was a notice period applied, but the employee did not make an official objection to this in time, so the end date remains August 21. This means that there was a dormant employment contract from July 27 to August 21, 2025.
The next question is over what period the transition payment must be calculated. The woman has not sufficiently demonstrated that she has worked continuously in the store since 1976. The employer took over the case in 2021 and only has data that mentions the starting year 2006. The judge still gives the woman some time to prove that this should be from 1976.
The end date is also under discussion. Because, the judge says, even if it has not been used now, you must include a notice period for the transition payment. The parties may still discuss with each other what that should have been.
The last question the judge must answer: did the woman accrue vacation days during the dormant employment contract? Although this case concerns a clear period, the judge wants clarity about this from the Supreme Court. Because she found six decisions on the same question with different outcomes. Both parties agree to a preliminary ruling to the highest court. It must now rule on the question of whether someone accrues vacation days during a dormant employment contract.
The commentary
The fact that you can arrive at different statements has everything to do with differences between Dutch law and European regulations, explains Jan-Pieter Vos of De Clercq Advocaten. The core of Dutch law is that you are entitled to vacation – at least four weeks per year – as long as you are entitled to wages. “If you are ill, your wages will continue to be paid for 104 weeks. After that, you are no longer entitled to wages and you will therefore no longer accrue vacation days.” But, says Vos, “the point is that holidays are very strongly regulated by Europe. We have had a working time directive since 1993 that concerns how long you can work, how long a break, what is allowed in terms of night work and also your right to holiday.”
Vos has seen many proceedings before the European court, the Court of Justice, over the past 25 years. “In 2001, the Court of Justice said that you may not impose conditions on the right to vacation. Strictly speaking, you may not link the right to vacation to the right to wages.”
In 2009, this Court ruled that sick employees simply accrue vacation during the entire period of illness, including after 104 weeks, Vos says.
Because the Netherlands continues to pay for illness for much longer than other countries – in Germany this is a maximum of six weeks – lawyers are advocating an exception for the Netherlands with its very different system.
What will the Supreme Court answer? “They are not allowed to answer this without asking preliminary questions to the Court of Justice. The Supreme Court is obliged to ask the Court for clarification if it is not clear.”
This is because European law takes precedence over Dutch law. In that case you would say: then the woman simply accrues vacation days, just like anyone else in a dormant employment contract. Vos: “But it is also possible that the Court will make an exception for the Netherlands because we have such a different system here than in the rest of Europe. It has already done that once for Germany.”
According to Vos, the judge in the store employee’s case wrote in a recent article that sick employees should no longer have to accrue vacation after 104 weeks of illness. “I think it is very cool – my compliments to this judge – that she does not say ‘I think this’, but really wants to know from the Supreme Court what the law says about this.”
Statements: Rotterdam District Court, March 2 and 17, 2026, ECLI:NL:RBROT:2026:2021 and ECLI:NL:RBROT:2026:2603
