Dismissal and Dutch law
Are you confronted with dismissal? Employees who are laid off under Dutch law, are well protected. Make sure you know about your legal rights if you're getting dismissed. Here is how to secure your unemployment benefits and increase your severance payment.
Deze pagina is ook beschikbaar in het Nederlands: Dreigend ontslag.
Can I get dismissed?
If you are employed by a Dutch company, you can basically only be dismissed if your employer has a valid reason to do so. For example, if you perform poorly or misbehave despite several warnings. Dutch labor law prescribes which grounds for dismissal are permitted. You'll find the most common reasons here.
There are exceptions though. Dismissal by mutual consent is one of them. If you and your employer mutually agree to end your employment contract, you can do so by drafting a settlement agreement. In some occasions your employer might offer you a settlement agreement, even though there is no valid dismissal reason. If that happens, you are in a strong negotiating position.
In some cases you can't be laid off at all. That might occur if you're ill or pregnant. In others, there is no reason required to fire you. For instance if you have reached retirement age or if you're still in your trial period.
What to do if dismissal is imminent?
If no dismissal procedure has yet been initiated, there is little you can do legally. Of course you can read up and try to turn the tide based on our tips below, assuming you want to stay employed. If your employer doesn't take the first step towards your dismissal, but you are fed up with the uncertainty or the negative atmosphere, you could initiate dismissal yourself. Call us first to obtain free legal advice.
10 tips to prevent dismissal
If your dismissal is impending, try to continue working with full dedication. If you slack or make mistakes, that plays into their hands. If you unexpectedly step it up a notch, it might make them doubt themselves. Your manager's motivation for firing you will also become more difficult to defend internally.
Do not agree to an exemption from work. If you want to keep your job, you have to keep working. It is different if your employer suspends you. This is a unilateral measure for which you cannot be blamed. Make sure that your suspension is confirmed in writing and that you immediately object to it in writing.
If your employer absolutely wants to get rid of you, then it will probably happen one way or the other. You can make it more difficult and ensure that you can realize a better dismissal proposal. If your manager is not 100% sure about your dismissal, your positive attitude can really have an influence in preventing your layoff.
From the moment you suspect impending dismissal, always respond in writing to important matters (certainly about your performance). If you initially respond verbally, confirm this afterwards by email or registered letter.
Your employer is in a stronger position if a poor performance is substantiated by your colleagues or customers. It is useful if you can prevent their complaints from being included in your personnel file. If it does occur, your employer will also have to discuss the complaints with you to hear your side of the story. Perhaps that rebuttal will be forgotten.
Hopefully your personnel file doesn't contain any reports of performance reviews or appraisals. If this is the case or if they are currently being written down, it is to your advantage if you have not received them and have not signed them 'as seen' or 'for approval'. You are not obliged to sign these reports 'for approval', so make use of that. Does your employer keep a personnel file in physical paper? Then you could have missed conversation reports if they were not sent to you by registered mail.
In preparation for a possible dismissal, it is a good idea to look for written evidence of good past performance. See if you can find notes, letters, emails or WhatsApp messages from colleagues, suppliers, customers or your manager. A personal letter from the management around Christmas to thank you for your efforts makes your position stronger.
Don't be too quick to hand over your car, computer or telephone, because as long as you are employed you will need them to perform your job. If you hand them in immediately, your employer can argue that by doing so you have already consented to your dismissal in disguise.
Protest in writing against your dismissal notice and never agree to an initial dismissal proposal. Ask your employer to put your reason for dismissal in writing and to send you a settlement agreement. Don't be pressured if your resignation letter states that you must respond within a few days. Since July 1 of 2015, you have a legal reflection period of two weeks. Send an email and registered letter in which you state that you have received the dismissal proposal, but that you need more time to respond due to obtaining legal advice.
Do not sign or engage with a legal service provider recommended by your employer. You don't know how independent it is. Perhaps you are sufficiently legally versed to determine for yourself whether your (future) dismissal is justified, how you can best defend yourself and how you can get more out of the negotiation. If you would like one of our employment lawyers to guide you, prevent you from forfeiting your unemployment rights and negotiate a higher transition payment for you, please let uw know.
Employee agrees to dismissal
Let's imagine you've had it with your employer and you're willing to cooperate towards termination of your employment contract. It could actually turn out to be a positive thing when you're able to shift focus to a new job and enjoy a fair severance package.
1. Dismissal by mutual consent
The optimal way of termination a labour agreement is through dismissal by mutual consent. What this procedure boils down to is that both you and your employer mutually agree to end your employment contract. You need to draw up a settlement agreement to record the terms of dismissal. You are not entitled to a transition payment, but you do need to reach a final settlement. A final settlement contains agreements about unused vacation days, dismissal compensation or severance payment. Make sure to take the notice period into account.
2. Termination with consent
Another possibility to end a labour contract is through termination with consent. This means that your employer initiates the dismissal, but you agree to it in writing. Although you are entitled to a transition payment, you are not able to negotiate about your dismissal terms. We discourage employees to agree to this procedure. It makes negotiating impossible and limits your rights to unemployment benefits after your dismissal.
Approval and reconsideration period
Dismissal by mutual consent as well as termination with consent don't need approval by the Employee Insurance Agency (Uitvoeringsinstituut Werknemersverzekeringen) or a sub-district court. You are entitled to reconsider the dismissal within 14 days without giving a reason. If your employer left the reconsideration period out in your termination agreement, this period will automatically extend to 21 days.
Settlement agreement check
Have you just received a settlement agreement or are you willing to resign based on mutual consent? Have our labour lawyers perform a basic check to find out what's missing or should be improved. That doesn't cost you anything.
Employee does NOT agree to dismissal
If you don't agree to the intended dismissal, your employer needs to initiate a formal procedure with the Employee Insurance Agency (UWV) or the sub-district court. The stated reason for dismissal determines which one of them has to grant their permission.
Dismissal permit from the Employee Insurance Agency
Your employer has to request a dismissal permit to the Employee Insurance Agency (UWV) in case one of the following two dismissal reasons applies:
You can't get dismissed without a dismissal permit. If the UWV doesn't grant permission, your employer has to turn to the sub-district court and start proceedings for termination of your employment contract. If your collective labour agreement (CAO) provides a (sector) dismissal committee, it's common practise to have them evaluate an intended dismissal for economic reasons.
Dismissal permission from the sub-district court
For all other dismissal reasons (C to H) your employer has to send a request for the termination of your employment contract to the sub-district court. A court judge will check if all of the relevant legal criteria have been met to terminate.
If your employer provides multiple reasons for your dismissal, they can be combined. A sub-district can be asked for dismissal on cumulative grounds (I). If granted, it's possible that you are entitled to an additional severance payment on top of the transition payment. That extra sum is at most 50% of the statutory transition payment.
Dismissal without permission
If you are dismissed without a dismissal permit from the UWV or approval of the sub-district court and it turns out that it was mandatory, your dismissal is not legally valid. You can ask the sub-district judge to undo your dismissal. Your employment contract will continue to exist and you are entitled to your regular wages.
Be aware of the fact that your employer doesn't need permission for dismissal in the cases below:
Dismissal and transition payment
The basic rule for qualifying for a transition payment (a statutory severance payment) is that you cannot be blameworthy. If your empoyer initiates the dismissal, you are probably entitled to a transition payment.
✅ Transition payment
You are entitled to a transition payment if your fixed-term contract isn't extended, if you are dismissed via the UWV or the subdistrict court on valid grounds or if you resign following serious culpable conduct or negligence on part of your employer. You may even be eligible for fair compensation.
❌ No transition payment
If you resign yourself, if you agree to dismissal by mutual consent or if you are to blame for your dismissal (due to culpable conduct or negligence), you are not entitled to a transition payment. With our help and a proper settlement agreement you could still succeed in obtaining a fair severance payment.
Questions about dismissal
Most employees that are confronted with dismissal ask us the following questions.
When can I get dismissed without grounds?
You can get dismissed without grounds during your trial period or in case you have reached the statutory or any other retirement age.
When is dismissal not allowed?
In the following occasions you can't be dismissed:
- in the first 2 years that you are sick or unfit for work;
- if your employer hasn't done enough to facilitate your return during your sick leave;
- during your pregnancy, pregnancy leave or maternity leave and 6 weeks thereafter;
- in the first 6 weeks after incapacity for work due to pregnancy or childbirth;
- because you want to take parental leave;
- during compulsary military service in the country of origin;
- for reasons of discrimination on grounds of religion, race, age or disability;
- because you are a member of a trade union, political organisation or staff representative body;
- if you refuse to work on Sundays;
- if your company is taken over;
- if you work as an expert under the Working Conditions Act;
- if you are a data protection officer under the Dutch Data Protection Act.
Can I ask my employer for a settlement agreement?
If you want to quit your job but also want to retain your right to unemployment benefits, a settlement agreement can offer a solution. Your employer is not obliged to cooperate with this, but many employers are inclined to do so. In some cases, a transition payment is possible as well.
Free legal advice about dismissal
We are happy to inform you about your legal rights in case you are confronted with dismissal. You can call us free of charge. If you fill out the form below, we will call you back at an appropriate time.