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Parental Leave: can employer refuse?

11/05/2011

Parental leave allows parents to temporarily reduce their working hours and spend more time raising their children. The employer is not always happy with the fact that he will temporarily and for part of the time have to do without the employee in his organization. Can he refuse parental leave?

Parental leave: what was the deal again?
In summary, a parent active under an employment contract with the employer for at least one year is entitled to parental leave for each child under 8 years of age in respect of whom no parental leave was taken in the past. The employee is obliged to notify the employer in writing of the intention to take parental leave at least two months before the parental leave commences.

When an employee for the first time takes parental leave for a child after 1 January 2009 then he is entitled to a period of parental leave that equals 26 times the weekly contracted working hours. The basic rule is that the number of leave hours per week shall not exceed half the number of contracted working hours and can consistently be taken for a period of at most 12 consecutive months. An example:

Employee A has a 36 hrs / week contract. The leave will be at most 36 x 26 = 936 hrs. Over a consecutive period of at most 12 months Employee A can take 18 leave hours / week.

In departure from this basic rule, the employee may request of the employer:

a) that he takes leave for a period exceeding 12 months;
b) that the leave be divided into at most six periods, whereby each period is at least one month; or
c) that he be permitted to take more leave per week than half the contracted working hours.

Employer refuses parental leave: permitted?
Parental leave is a legal right. This right is not subject to the employer's consent and is created purely as a result of an employee's timely notification.

However when the employee wishes to invoke abovementioned three departing options then the employer is permitted to refuse a pertinent request for compelling business or service interests. This applies equally, among other things, to a requested distribution of leave hours over the week.

The courts accept compelling business or service interests only in exceptional circumstances.

However, recently HEMA successfully invoked such an exceptional circumstance. The Amsterdam Sub-District Court denied in interlocutory proceedings a claim instituted by a female employee of HEMA for - in summary - fulltime parental leave for the duration of six months. The Sub-District Court argued that said employee, as manager of the Sales Promotions & Communications department, fulfilled a unique role that could not be temporarily filled by her colleagues in the department. Nor had it been demonstrated that the work could be performed by an interim manager in the employee's absence and it was argued that her absence would adversely impact the market share of HEMA. This justified, according to the Sub-District Court, the unresponsive posture of HEMA. And finally, the Sub-District Court considered the potential creation of a precedent of awarding fulltime leave for employees filling other unique roles.

Similarly, there was a previous ruling by Sub-District Court Terborg. In this case the employer had argued convincingly that the performance of the company's production department was not optimum without the employee. Again, employee had failed to demonstrate that a substitute for him could be found.

Conclusion
In other words, the employer's business interest will not readily outrank the employee's interest where employee submits a request for parental leave. Each individual case must be considered to decide if the employer is entitled to invoke grounds for exception. The employer is required to thoroughly substantiate any negative decision. The above case law can serve as a starting point.

Authors

Picture of Stephanie Dekker
Stephanie Dekker