Statutory vs. extra-legal holidays
Employees working in Belgium are entitled to 20 statutory holidays to the extent they have accrued those vacation by working full-time during the preceding year (the “holiday reference year”). If the employee has not worked as a salaried employee in Belgium during the full holiday reference year, he will not be entitled to any vacation, or to a prorated amount only.
Apart from the rules regarding their accrual, statutory vacation are also subject to other specific rules (transfer, payment of single and double holiday pay, consequences in the event of termination of the employment contract, etc.).
Some employers however grant extra-legal leave to their employees on top of the statutory holidays. Those extra-holidays may be imposed by the Joint Industrial Committee (“JIC”) of the employer or granted freely by the employer, on company level.
Are those extra-legal holidays subject to the same rules as statutory holidays?
As their name suggests, extra-legal vacation have no specific legal framework, which means that the rules on statutory leave do not apply to them.
In the absence of any legal provision on extra-legal leave, the source of law which attributes those holidays determines the applicable rules:
- If foreseen at sector level by the JIC, there is a CBA at sector level;
- CBA at company-level;
- Employment contract;
- Working regulations;
- Company policy.
The Labour Court of Brussels has indeed recently ruled that in the absence of any rules on extra-legal holidays, there is no obligation for the employer to pay any exit holiday pay, unless the employee proves the employer undertook to pay them. In this case, the contract explicitly provided that any untaken extra-legal holiday was lost and therefore not paid in the event of a termination.
Recommendations
In the absence of any source of law, the granting and modalities of extra-legal vacation could lead to discussions between the employee and the employer. In order to avoid any dispute or arguments on the matter, it is therefore strongly recommended to foresee explicit rules regarding extra-legal leave, such as:
- what happens if the employee does not take the holidays before the end of the year: will they be paid out, can they be transferred to the next year (with a maximum number or during a certain period), or will they simply be lost;
- are the extra-legal leave also subject to double vacation pay, or only single vacation pay;
- accrual: are the holidays prorated for part-time employees or employees who joined the company in the course of the year;
- in case of termination, will the extra-legal leave be paid out in the form of exit vacation pay?
These modalities can be included in one of the abovementioned sources.
If you would like more information on this topic or if you require assistance to draft rules on extra-legal holidays, Pro-Pay can advise you on this matter. You can use the contact sheet to reach out to them.
