Holiday leave can be transferred to the subsequent year as of 2024

At a glance

• A Royal Decree of 8 February 2023 helps set out some changes in relation to holiday leave accrued in 2023.

Each year workers should use their annual statutory holiday leave entitlement by 31 December. 

However, an employee might not always use all of their entitlement by the end of the year. In this case, Belgian law stated that the unused days should be paid out at the end of the year. As a result, the worker would receive holiday pay but could not use the extra holidays accrued.

Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time sees holiday leave from a health angle, so stipulates that holiday leave can only be replaced by a payment if the employment relationship ends.

Therefore, Belgian law was contrary to European Law on this matter. However, A Royal Decree of 8 February 2023 helps to resolve this issue. 

The basic rule maintains the principle that an employee must use holiday leave by the end of the year. If an employee can’t take all days because of absence resulting from an accident at work, illness, maternity leave, paternity leave, adoption leave or care leave, the unused days will now be transferred to the subsequent year. The employee must take the days either in the subsequent year or in the year following that.

The provision stipulating that holiday pay for any unused days must be paid at the end of the year remains. The unused days still have to be paid out at the end of December, even if those days are transferred to the subsequent year. So the worker will not receive any remuneration when taking one of those transferred days, as the holiday pay for those days was already paid out.

Nothing changes in the calculation basis of the holiday pay. If an indexation of increase of the remuneration takes place on 1 January, transferring holiday leave to the subsequent year does not make any difference when it comes to the amount of holiday pay.

A separate change introduced by the Royal Decree of 8 February 2023 is that sick leave is no longer imputed to the holiday leave a worker is entitled to, irrespective of whether the worker falls ill before the scheduled period of holiday leave, or during the period of holiday leave. Those days will be taken at a later time.

If a period of holiday leave is changed into a period of sick leave, the normal rules apply when it comes to the duty to inform the employer of any sick leave as soon as possible. The worker still has to submit a medical certificate and the employer still has the right to appoint a medical doctor to verify whether the worker is genuinely ill. It goes without saying that practical difficulties can arise if the worker falls ill when on holiday leave abroad.

The Royal Decree of 8 February 2023 applies for holiday leave in relation to service year 2023. The first days that can be transferred to the subsequent year are the holiday leave that should normally be taken in 2024.