Parental Leave
A discussion of a judgment of the Subdistrict Court of
Amsterdam of 18 December 2008, JAR 2009/43
Pursuant to the Dutch Work and Care Act (Wet arbeid en
zorg), an employee is entitled to 26 weeks of parental leave
without pay for each child since 1 January 2009. The number of
hours of leave is at most half of the working hours per week spread
over 12 months. The employer cannot refuse this leave, unless the
employee wishes to take leave over a longer period than 12 months
or take more hours per week. In that event the employer can refuse
this on account of a serious interest of the business or the
employee's position. The Subdistrict Court of Amsterdam had to
assess whether the employer was allowed to refuse the request for
parental leave anyway, because the position of assistant estate
agent could not be fulfilled in less than five days.
The
Facts in the Judgment
The case was as follows. Ms. R. had been employed with a firm of
estate agents as an assistant estate agent since 1 May 2005. She
requested her employer's permission to work four days a week
after giving birth. The employer acceded to this request, but did
inform her that because of her reduced working hours she would from
then on only be allowed to work for professional clients and no
longer for private persons. He also added that if she wanted to
start working less than four days, she had better look around for
another employer. Ms. R. gave birth in July 2008 and went back to
work a good month afterwards. In October 2008 Ms. R. notified her
employer that she wished to make use of her entitlement to parental
leave. She indicated that she wished to exercise this entitlement
by taking 1 day of leave per week throughout a period of one year.
The employer stated that he would not agree to this, because he
claimed to have no work for an assistant estate agent who works
less than four days a week. She could, however, take up the
position of telephone operator within the company. Moreover, the
employer objected to Ms. R.'s expressing milk at work. After
this Ms. R. reported sick. The employer filed a petition for
rescission on account of a change of circumstances.
The
Judgment of the Subdistrict Court
The Subdistrict Court found that there was a disturbed working
relationship, so that it could not be expected from Ms. R. in
reasonableness and fairness that she would resume her work. Within
one month after her resumption of work a discussion had arisen
about the parental leave Ms. R. would possibly take and about her
expressing milk. This led to Ms. R.'s reporting sick. As a
result, the good understanding that is required for a further
cooperation had permanently come to an end. The Subdistrict Court
rescinded the employment agreement and awarded a severance pay to
Ms. R. while considering the following. The employer had not acted
as a good employer by stating that it is actually impossible for an
estate agent to work less then five days per week. The fact that
employees fulfill care duties within their families may not
obstruct them in carrying out their own work and in keeping career
perspectives. The temporary reduction of working time to three days
per week in connection with the care duties is completely
commonplace. The argumentation that estate agents would have such a
special relationship with their customers that a reduction of
working hours would not be possible must be dismissed. If it were
accepted, this argumentation could be advanced for practically all
positions of (prospective) professionals, such as estate agents,
judges, attorneys, accountants, family doctors and elementary
school teachers, which would seriously undermine the position of
professionals who fulfill caring duties. Besides, the Subdistrict
Court considered that the employment conditions policy of this
employer was discriminating, because women rely more often on the
parental leave scheme. For this reason, the employee was granted a
gross severance pay of € 29,000.
Tips
- In principle, an employee has the right to perform his or
her own position during parental leave.
- Parental leave can in principle not be refused. If the
employer does refuse it, this may play a role in the amount of
the severance pay.
- A policy in which parental leave is limited may constitute
sex discrimination, because it is mainly women who use this
right.