As a highly skilled migrant (in Dutch: “kennismigrant”) your position as an employee is less strong than the position of a regular employee. First of all, your right to stay in the Netherlands depends on your temporary residence permit to live and work here as a highly skilled migrant. That type of permit is linked to having paid work. If you lose your job as a highly skilled migrant, there is a great chance that you will also have to leave the Netherlands. As a highly skilled migrant, you can use this threat to your advantage in case of an impending dismissal. We will explain this further in this article based on a recent decision of the Arnhem-Leeuwarden Court of Appeal.
Vulnerable position upon termination of employment contract
If you are a highly skilled migrant and are no longer employed, you will be given a three-month search period to find another place of employment with a so-called sponsor employer (in Dutch: “erkend referent”). If you do not succeed in finding a new job as a highly skilled migrant during this search period – with the conditions that go with the residence permit to work as a highly skilled migrant – you will have to leave the Netherlands. This also applies to your family members, because their right to stay in the Netherlands depends on the highly skilled migrant’s right of residence.
Additional termination compensation of € 60,000 for a highly skilled migrant
An employer must take such a vulnerable position into account when considering possible dismissal. This is what the Arnhem-Leeuwarden Court of Appeal ruled on September 4, 2023. The employer in that case had failed to do so. A few months after the start of the employment contract, that employer (a so-called sponsor employer, of course) had announced its wish to terminate the employment contract of the highly skilled migrant. To enforce that wish, the employer filed a request for dissolution of the employment contract with the court. The employment contract was dissolved by the judge, also because – due to the employer’s behavior – the highly skilled migrant no longer had confidence in continuing the employment contract.
However, the judge did find that there was so-called “serious culpability” on the part of the employer. A factor in that conclusion was that the employer had not taken into account the employee’s vulnerable position as a highly skilled migrant worker when he wanted to terminate the employment contract quickly. In the event of seriously culpable conduct, an employee is entitled to fair compensation. In this case, the court of appeal awarded fair compensation of €60,000 gross, after a short employment period of less than a year.
The negotiation position of a highly skilled migrant
A court therefore expects the employer of a highly skilled migrant to take into account the possible very drastic consequences that come with the residence status of a highly skilled migrant. As a highly skilled migrant, you can benefit from this in the event of impending dismissal. By negotiating a possible amicable termination of the employment contract through a settlement agreement, you can ask for a higher compensation because of this risk of losing your right of residence. Compared to a regular employee you, as a highly skilled migrant, therefore have an additional interest in a higher compensation or in keeping your job: namely, the interest of you and your family to be allowed to stay in the Netherlands.
Do you have any questions? Or would you like more advice about your rights as a highly skilled migrant in the event of a dismissal? Then please do not hesitate to contact us.