On 21 February 2025, the Dutch Supreme Court ruled on the right to equal treatment of men and women in response to preliminary questions. The case revolved around the collective bargaining agreement (CBA) for the secondary vocational education (MBO) sector, which entitles employees to 30 vacation days as well as approximately 30 "other leave days". According to the CBA, employees are not required to work on these "other leave days", which are not classified as vacation days and include, for example, days falling within school holiday periods. The CBA stipulates that employees do not receive compensation when these "other leave days" coincide with maternity leave. The Supreme Court was asked to decide if this provision discriminates against women.

In its ruling, the Supreme Court presumed that "other leave days" in the CBA do not essentially differ from vacation days and will also be regarded as such by employees. Consequently, these "other leave days" are part of the terms of employment. The current arrangement on "other leave days" therefore results in women being treated less favourably than their male colleagues when it came to terms of employment, which is prohibited under Dutch and European law. The right to compensation when maternity leave coincides with "other leave days" must be expanded in the CBA to prevent this unequal treatment.

Case background

The claimant in this case was a teacher at an MBO school. Under the CBA for the MBO sector, employees are entitled to: (a) 30 vacation days per year, and (b) 30 "working days" where work is not required while (as the CBA explicitly states) not being considered vacation days. These days are also referred to as "other leave days" in the CBA. The teacher in question went on maternity leave that overlapped with 13 of these "other leave days". She argued that she was entitled to compensation for this overlap because by not providing for such compensation, the CBA put her at a disadvantage compared to her male colleagues.

The school argued that the "other leave days" are not proper leave days, but rather days on which no work is required, similar to weekends or part-time days. As there is no right to compensation for these days, the school contended that no discrimination had occurred.

The teacher and the school presented their case to the subdistrict court. The court then submitted preliminary questions to the Supreme Court, asking it to clarify whether the CBA violates article 7:646(1) of the Dutch Civil Code or article 5(1)(e) of the Dutch Equal Treatment Act, both of which prohibit discrimination between men and women. The subdistrict court also raised questions about how "other leave days" should be classified.

Supreme Court's preliminary ruling

The Supreme Court answered the preliminary questions by outlining the national and European legal framework: articles 7:646(1) of the Dutch Civil Code, article 5(1)(e) of the Equal Treatment Act, and the EU Equal Treatment Directive. Referring to European case law (the ECJ's Gomez ruling), the Supreme Court concluded that there must be substantive equality for men and women in terms of employment. Maternity leave limits women’s freedom to use the "other leave days" as they see fit. This means that overlap between maternity leave and "other leave days" results in a disadvantage for female employees. The Gomez ruling also implies that the lack of compensation for the "other leave days" conflicts with the EU Equal Treatment Directive. The CBA provision therefore also goes against Dutch equal treatment legislation, as the Civil Code and Equal Treatment Act provisions form the implementation of the EU Equal Treatment Directive into Dutch law. This results in direct discrimination, which is prohibited.

The Supreme Court also emphasised that the definition of "other leave days" should be interpreted broadly. A key consideration is the employee's usual work pattern. A non-working day on which an employee would not normally work, such as a Saturday, Sunday or part-time day, does not necessarily constitute a term of employment. However, if it is a day that would normally be a working day, but is designated as a non-working day by the employment contract or CBA, it must be regarded as a term of employment. Whether a particular day falls into one category or the other depends on all the relevant circumstances.

In this case, the employee had a full-time employment contract with 260 potential working days per year. The employee could be scheduled for a maximum of 200 working days. Of the remaining days, 30 were designated as vacation days, and the rest were "other leave days" at her own disposal. Employees perceive these "other leave days" as days off, which are in essence similar to holidays. Under these circumstances, it seemed logical to classify the "other leave days" as a term of employment, but the Supreme Court acknowledged that it is up to the subdistrict court to decide on this matter, as the CBA is not declared universally binding and therefore does not fall within the scope of acts, judgments, rulings or decisions the Supreme Court is authorised to annul (based on article 79 of the Judiciary Organisation Act, Wet RO).

As a result, the Supreme Court found that the CBA leads to less favourable terms of employment for women than for men. The provision concerned therefore conflicts with article7:646(1) Dutch Civil Code and article 5(1)(e) of the Equal Treatment Act, which are mandatory law.

The Supreme Court concluded that simply nullifying the provision is insufficient – the right to compensation included in the CBA provision must be expanded to prevent unequal treatment. It is now up to the subdistrict court to decide how it will apply the Supreme Court's preliminary ruling in its decision.