On 21 February 2025, the Dutch Supreme Court (ECLI:NL:HR:2025:320) issued a ruling regarding the overlap of maternity leave and “other days” as outlined in the collective labor agreement for secondary vocational education and adult education (CBA MBO). What was the issue at hand?
In the Netherlands, collective labor agreements can designate collective vacation days, for example for the days between Christmas and New Year. This practice is common in the education sector, particularly for school holidays, and is also applied in the CBA MBO. The Supreme Court previously determined that if an employee cannot take advantage of collective vacation days due to maternity leave, they should be able to compensate for these days at another time. Employees covered by the CBA MBO are therefore allowed to compensate for collective vacation leave.
However, the CBA MBO also includes 30 so-called “other days”. On these days, no work is required, but they are not considered vacation days according to the CBA MBO. These “other days” are allocated to public holidays, bridge days, and the summer vacation. When maternity leave coincides with these “other days,” employees were not allowed to compensate for the missed days.
One employee missed 13 “other days” due to this overlap and was not permitted to compensate for them. She argued that this constituted unlawful gender discrimination in employment terms, as outlined in section 7:646 of the Dutch Civil Code and the Equal Treatment Act, since the policy disadvantaged her as a woman. The employee and employer jointly approached the subdistrict court through an Section 96 CCP procedure. The subdistrict court then referred preliminary questions to the Supreme Court.
The Supreme Court ruled that the “other days” in the CBA MBO are essentially no different from vacation days and are perceived as such by employees. The Court found it logical that these “other days” should be considered an employment condition. The current CBA MBO policy, which does not allow compensation for “other days” when they overlap with maternity leave, results in less favorable treatment for women regarding employment terms. Since this involves pregnancy discrimination, it constitutes direct gender discrimination. The Supreme Court concluded that the CBA MBO policy violates Article 7:646 of the Dutch Civil Code and the Equal Treatment Act, and thus contravenes mandatory law. The Court decided that nullifying the provision is not an adequate solution in this case. Instead, the existing compensation right for vacation days should be extended to prevent unequal treatment.