Providing free healthy lunches

What was this case about?

A vegetable grower provided free lunches to his employees in the company canteen in the period 2017-2018. The employees had a daily choice between two healthy and balanced meals. The lunches were put together by a dietician and complied with the healthy eating guidelines of the Health Council of the Netherlands and the ‘schijf van vijf’ food pyramid of the Netherlands Nutrition Centre. Providing these free meals was part of the grower’s policy on employee health and vitality. The grower had made the provision an integral part of the company's health and safety policy. The grower therefore took the view that the meals could remain tax-free because the specific exemption for health and safety facilities applied. The tax authorities did not agree with this viewpoint, because a lunch - even if it was healthy - would not qualify as a health and safety facility. The grower therefore should have designated the value of the lunches provided in 2017 and 2018 as final levy amounts against the WKR tax-free budget and paid payroll tax on the amount in excess of the exempt budget. The grower then lodged an objection, an appeal and ultimately turned to the Supreme Court to prove his point.

Rulings of the Court of Appeal and the Supreme Court

The Court of Appeal could to some extent follow the grower’s reasoning but did not agree with him. The Court of Appeal ultimately ruled that furnishing a healthy lunch may well help to promote health and vitality generally but could not be considered a health and safety facility as such because the grower in this instance was not providing for the health and safety of the employees in the context of the work that they performed.  

The Supreme Court ruled differently: given that the provision of healthy lunches arose directly from the health and safety policy pursued by the grower under the Working Conditions Act (Arbowet), it was a health and safety provision. The grower therefore will receive a rebate on the payroll tax remitted for years 2017 and 2018.

What does this mean?

The rules surrounding the specific exemption for health and safety facilities have been tightened up since 1 January 2022. Since then the specific exemption for a health and safety facility only applies if it is explicitly required under the Working Conditions Act. The employer’s own health and safety policy is therefore no longer key, it is about whether or not the provision is mandatory. This makes the ruling less relevant for the period since 2022. In the meantime, however, parliamentary questions have been put to the State Secretary of Social Affairs about the application of this ruling in the years since 2022. Members of parliament have asked the State Secretary to consider changing the present policy.