Annual holiday: how to avoid “trouble in paradise”?

Legal Eubdate
9 June 2023

A collective or individual agreement is required to schedule holidays. What other rules and focal points should you consider in order to avoid frustrations and other concerns?

Collective holidays: the rules of the game

Sectoral provisions – First, check whether a decision has been taken at sectoral level regarding collective holidays. Joint committees can decide on the dates of holidays and their allocation until 31 December of the year preceding the year in which the holidays are to be taken. This is often only a recommendation (e.g. in the construction sector), which can then be derogated from at the company level.

Company level – If the joint committee has not taken a decision or has not done so in time, the works council can determine the collective holiday period. In the absence of a works council or a timely decision by the works council, there is a cascade system determining who can make the decision (the union delegation or the employees). There is no statutory period to be respected for these decisions at the company level, but it is obviously necessary to schedule the collective holidays in time for employees to be able to make arrangements accordingly. The agreement on the dates of collective holidays must be included in an annex to the working regulations.


Individual holidays: first come, first served?

General – When no collective holidays have been scheduled, the decision to take holiday days must be made by mutual agreement between the employer and the employee. In principle, the procedure to request individual holiday days is laid down in the working regulations.
If the employer and the employee do not agree concerning holiday dates, the employee can lodge summary proceedings at the labour court to enforce consent. This is rarely done in practice.

Basic rules – While an agreement is always necessary, there are some basic legal rules you should bear in mind.
A parent with a school-aged child has priority over colleagues without school-aged children to take holiday days during school holidays. This is the only legal priority rule for planning holidays. As from the 2022–2023 school year, the school holidays in Wallonia and Brussels differ from those in Flanders. Employers must take this into account.
The employer must guarantee each staff member an uninterrupted period of one week’s holiday. In addition, the employer must guarantee an uninterrupted period of two weeks’ holiday between 1 May and 31 October, unless the employee does not want this.

Setting holiday rules – To keep the need for further discussion to a minimum, it is recommended that the employer should determine the holiday rules and set them out in the working regulations or in a separate policy. The elements that can be considered would include the following:

  • You can stipulate how long in advance holidays should be requested.
  • When determining which holiday request takes precedence, you may take into account, for example, the employee’s seniority or the fact that holidays are collectively fixed in the company where the employee’s partner works.
  • A rotation system to prioritise holiday requests is possible.
  • You can decide how many holiday days your employees are obliged to take before a certain month of the year.


Trouble in (holiday) paradise nevertheless?

Not all holidays were taken up – For now, the legislation still stipulates that an employee must take his/her statutory holidays before 31 December of the holiday year. From holiday year 2024 onwards, statutory holidays that could not be taken due to certain work interruptions (such as illness, maternity leave or an industrial accident) will be transferable for up to 24 months after the end of the holiday year. For extra-statutory holidays, there is more flexibility: even under the current legislation, they do not have to be taken before a certain date. The employer is free to lay down rules on this in the working regulations or in a separate policy.

Sickness during holidays – An employee who falls ill during his/her holidays cannot – as things currently stand – convert these days into sick days. From holiday year 2024 onwards, however, these holidays will be convertible into sick days if, having become ill during his/her holidays, the employee immediately informs the employer about where he/she is residing (if this is not his/her home address) and submits a medical certificate (from the first day of incapacity for work). An employee who wants to convert his/her holidays in this way will have to explicitly notify his/her employer that he/she wishes to do so. The employee will then be entitled to guaranteed remuneration for these sick days.

Withdrawal of holidays – The employee or the employer may wish to withdraw approved holidays at the last minute for a variety of reasons (an emergency situation in a project, deadlines, bad weather, cancelled flights, etc.). Neither the employer nor the employee is obliged to accept such a request from the other party; after all, changes can only be made by mutual agreement. It is advisable to include the regulation of such situations in the working regulations or a separate policy.