Starting January 2015 a new Dutch employment law will be the source of many changes. This new law will have a large effect on employment contracts.
Changes in employment law
- Obligation of notification of termination. One month before the termination of a definite contract of 6 months or longer, an employer must notify the employee whether the employment agreement will be extended. If the employer does not notify the employee, he has the right to claim salary during the period in which the employer is too late. He can claim up to a maximum of one month’s salary. This obligation enters into force on January 1st 2015;
- Prohibition of a trial period in fixed term contracts of 6 months or less. This prohibition will be applicable to contracts that will commence after January 1st 2015;
- Prohibition of a non-competition clause in fixed term contracts (unless the contract specifies the necessity of such a clause in light of severe company interests). Applicable to all contracts that are entered into after January 1st 2015;
- The current stipulation, “no labour, no salary”: an employee is not entitled to salary when not performing activities, will change. From now on it will be “no labour, still salary, unless the non-performance is seen as at the risk of the employee”. This change will secure a deviation of the burden of proof in favour of the employee. It is still possible to exclude applicability of this clause for the first 6 months of the contract. However, the exclusion can no longer be extended indefinitely by collective labour agreement.
The current regulation stipulates that an organisation can hire an employee on the basis of fixed term contracts three times and/or for a maximum period of 3 years. Also, the chain is cancelled when there is a minimum period of 3 months and one day between following contracts. As of July 2015 this will be changed. Now, an employment agreement for an indefinite period is established when:
- a maximum of three contracts is exceeded;
- the maximum time frame of 2 years is exceeded;
- and in both of the abovementioned situations there is a period of no more than 6 months and 1 day in between two following contracts.
To sum up: the amount of temporary contracts remains the same. However, the period that those contracts comprise, cannot be more than 2 years. Furthermore, the employer will need a “time-out” of at least 6 months and 1 day to cancel the chain. For example, as of July 1st 2015 it is possible to get a fixed contract of 6 months wich is then extended with another 6 months, to end with a contract of 1 year. A chain of consecutive 1-year-contracts will however result in an agreement for an indefinite period after 2 contracts (i.e. after 2 years).
Termination of employment agreement
There are various routes for termination of employment agreements, depending on the cause of termination. Termination based on extensive incapability ór economic reasons, must be executed through UWV. Termination based on “personal” reasons, like malfunctioning, disturbed relationship, must be addressed by the Cantonal Judge. Please note this change will leave the possibility of an amicable settlement unaffected.
Also, as of 2015, the employer does not need consent of UWV or the Cantonal Judge in order to terminate the employment agreement once the employee has reached the AOW eligible age.
Irrespective of the termination-route (UWV of Cantonal Judge) the employer will have to pay a “transition compensation” (transitievergoeding). This compensation replaces the severance payment (ontslagvergoeding) and is calculated differently.
The transition compensation is calculated as follows: for every year of service less than 10 years, the employee receives 1/3 of his monthly salary. For every year of service that exceeds 10 years, half of his monthly salary is granted. In 2017, in total a maximum of € 77.000,- applies, unless the employee’s yearly salary exceeds that amount (in which case this higher amount counts as maximum).
The transition compensation is not due in case of severe fault of the employee, for example in case of termination due to an urgent cause. Temporary employees are also eligible for the transition compensation, as soon as the temporary employment relation reaches a period of two years (without renewal/extension of the contract).
- In case of severe culpability of the employer, a Judge may grant the employee an additional “reasonable” compensation;
- Given the above, the sub-district Judge formula no longer apply in procedures that are entered into after July 1st 2015. In negotiations on amicable terminations, the transition and possible additional compensation will be leading;
- The procedure of “manifestly unreasonable dismissal” no longer exists;
- In case of amicable termination (mutual consent, settlement agreement), a reconsideration period of 14 days will be introduced on behalf of the employee. Within those 14 days, the employee may withdraw his consent, which leads to continuation of the employment agreement or reopens negotiations. The employer is obliged to inform the employee about that possibility;
- Obligation to provide education. This stipulation will especially be of importance in cases concerning malfunctioning. The present practice already requires the employer to provide a malfunctioning employee with sufficient tools to improve, but our expectation is that the legal stipulation will be applied more strictly in those circumstances;
- All termination decisions (Cantonal Judge, as well as UWV) can be appealed in front of the Court of Appeal and the Supreme Court.
- The Extraordinary Labour Relations Decree 1945 (BBA 1945), is extinguished.
Observation of new regulations
Finally, we would like to make some observations regarding these new and expected changes. Employees can ask for golden parachutes when they negotiate their employment terms. Especially employees who have high salaries and who do not want to be “punished” by only being paid the transition compensation, will want to agree upon a severance upfront.
We expect further complications with regard to the fact that there will be only one route which an employer must take when wanting to terminate an employment agreement. As most cases are not clear cut in the sense that they are either requested because of economic reasons or extensive incapability (which would mean the UWV-route) or personal reasons (meaning the route of the cantonal judge).
Employers will want to prevent having to go to court. Employees can use this to negotiate a higher compensation. We expect that most employers will not want to deviate from the transition compensation calculation, especially because a judge will only grant an additional compensation in case of severe culpability of the employer.
Of course we will keep you informed of developments, such as on transitional law and the relationship between the changes and ongoing collective agreements.
If you have any questions or would like more information, please do not hesitate to contact us.
This article was updated November 2017.
Godelijn experienced an international upbringing and education as an expat child living in Africa and England. Back in The Netherlands, she studied law at the University of Utrecht (1990). She then embarked on her legal career as a lawyer by working 10 years for the well-known law firm of ‘Wladimiroff en Spong Advocaten’. In 2000 she joined GMW lawyers as a partner and is the head of the Labour law and Pension section.
Godelijn specialises in international employment law and has extensive experience in dealing with both non-contentious and contentious international employment matters including (collective) redundancy packages and dismissal. She works for both companies and individual employees, enabling her to keep an open mind to both sides of a case. Naturally she helps her clients when a problem has arisen, but prefers to act before an escalation has taken place. Advice on a fair Human Resource policy is an essential part of her work.
Godelijn Boonman is considered to be the undoubted employment specialist for the expat community because she is bilingual, has a large international clientele and a wealth of experience in international employment law matters. She is therefore frequently asked to be the key note speaker at international seminars.
Godelijn has a keen interest in the international community and has been a member of the advisory board of ACCESS and the Women’s Business Initiative International since its beginning.