On 6 November 2020, the Dutch Supreme Court answered preliminary questions about the equal treatment of men and women in the context of collective employment terms. The questions had been put forward by the The Hague District Court in a case raised by a school's female employee. The case centred on a clause in the collective labour agreement for secondary education (CLA) that stated that no compensation would be granted to female employees if their (prenatal or postnatal) maternity leave coincided with school holidays other than those during the summer. The Supreme Court ruled that this provision violates equal treatment legislation, as it makes a direct and unlawful distinction between male and female employees. This ruling makes clear that female employees must be compensated if their maternity leave coincides with holiday leave. It further illustrates that courts may set aside clauses which do not safeguard the equal treatment of men and women in their employment terms. Stefan Sagel, Irina Timp and Fieke Weber of De Brauw's employment team successfully litigated this case before the Supreme Court on behalf of the employee and teachers union AOb.

Background

The claimant in this case is employed by Stichting het Rijnlands Lyceum. As a teacher at the International School of the Hague, the CLA applies to her employment agreement. According to the CLA, teachers may only take holiday leave during school holidays, plus five additional days without a loss of salary. The CLA also contains a clause about concurrence of holiday leave and maternity leave (prenatal and postnatal). This provides that female employees retain their right to holiday leave where this coincides with both the summer holiday and the period of their prenatal or postnatal maternity leave. However, if the period of maternity leave coincides with school holidays other than the summer ones, the CLA states that no compensation will be granted.

The employee's maternity leave partly overlapped – nine days – with the May school holidays. As the employer refused to compensate the employee for days of holiday missed due to maternity leave, the employee started legal proceedings before the The Hague District Court. She argued that she was discriminated based on gender, as she enjoyed less holiday entitlement than other employees (especially male employees), as a direct consequence of her pregnancy. The employer put forward its arguments countering this position. The district court subsequently referred three preliminary questions to the Dutch Supreme Court.

Supreme Court: unequal treatment of men and women…

The first question addressed by the Supreme Court was whether the CLA provisions contravene article 7:646 of the Dutch Civil Code (DCC) and article 5 of the General Act on Equal Treatment (GAET), which state that, as a general rule, employers may not make a distinction between men and women in terms of employment. The Supreme Court answered this question in the affirmative.

In its answer, the Supreme Court referred to the Gómez judgment of the European Court of Justice that also dealt with the concurrence of holiday leave and prenatal and postnatal maternity leave. The ECJ ruled that the Working Time Directive, the Pregnant Workers Directive and the Equal Treatment in Employment Directive imply that a female employee should be compensated and be allowed to take holiday leave in another period than the agreed holiday period if that period coincides with her maternity leave. This is not only the case if the employee is entitled to the minimum days of holiday set out in the Working Time Directive, but also if the employee is entitled to "extra" days of holiday based on a local provision.

According to the Supreme Court, the CLA provisions imply that a female employee generally loses any holiday leave that coincides with her prenatal and postnatal maternity leave during holidays outside the summer period. This does not apply to male employees. As a consequence of the CLA provisions, women are treated less favourably – with regard to their employment terms – than men. The CLA provisions contravene the Equal Treatment in Employment Directive, and article 7:646 (1) DCC and article 5 (1) (e) GAET, which implement the directive. The CLA provisions constitute a direct distinction between male and female employees that does not fall under the exception of article 7:646 (3) DCC, which allows for unequal employment clauses if these are beneficial to the protection of women, in particular in connection with pregnancy or maternity. As a consequence, the CLA provisions are invalid.

… irrespective of the interpretation of the CLA provisions

Second, the Supreme Court was asked whether the interpretation of the CLA provisions is important in answering the first question. According to the employee, the CLA provisions give employees a right to a certain amount of holiday above the legal minimum of twenty days a year: the school holidays plus five extra days. According to the employer, the CLA provisions do not grant employees holiday above the legal minimum, but only set out when employees can take holidays: during the school holidays and five extra days. The employer referred to the Supreme Court's ruling in Dekker / ROC-I. According to that ruling, based on the Legal Status (Educational Personnel) Decree (Rechtspositiebesluit onderwijspersoneel) that preceded the CLA, female employees were not entitled to compensation where the period of prenatal and postnatal maternity leave coincided with holiday leave, as the decree only set out when the employees were allowed to take holiday.

The Supreme Court answered the second question in the negative: the CLA provisions breach equal treatment legislation irrespective of whether the employee or the employer's interpretation is correct. The Dekker / ROC-I ruling is no longer relevant as it refers to the decree that preceded the CLA; the CLA provisions are materially different.

Other violations if employee's interpretation is correct

Third, the Supreme Court answered the question of whether article 7:636 (1) DCC and article 3:4 of the Work and Care Act (WAZO) had also been breached. The Supreme Court considered that, based on these statutory provisions, days on which the employee did not perform the contractual work due to prenatal or postnatal maternity leave could not be regarded as holiday. If the period of the maternity leave coincides with a collectively set holiday period, compensation of holiday leave entitlement by granting maternity leave is therefore not permitted under the law. This means that the answer to the third question depends on the interpretation of the CLA provisions.

The CLA provisions only constitute a breach of article 7:636 (1) DCC and article 3:4 Work and Care Act if the interpretation given by the employee is correct, namely that the CLA grants the employee a certain amount of holiday above the legal minimum of twenty days a year. As it is up to the courts in the fact-finding phase to interpret a collective labour agreement that is not declared universally applicable, the Supreme Court did not decide which interpretation is correct. Nonetheless, it explicitly mentioned that the employer's interpretation is less obvious. If the district court follows the court's suggestion – and we expect that will be the case – the CLA provisions will also contravene article 7:636 (1) DCC and article 3:4 Work and Care Act.