The Dutch Whistleblower Protection Act, that replaces the former Dutch Whistleblowers Authority Act, strengthens the protection of whistleblowers and has important implications for employers. For most parts the law has even direct effect for employers with 249 employees or more. Employers with 50 to 249 employees are subject to a transition period until the17th of December 2023 to comply with the law. Therefore, employers for employers who have not updated their internal reporting procedures yet, must come into action. We have listed the most important changes for you.

Employers are by now used to the fact that employees on fixed-term contracts must be informed in good time and in writing whether the contract will be extended or not. If an employer fails to do so or does so too late, the employee is entitled to compensation of up to one month's salary. What if the employer did give timely oral notice that the temporary employment contract will not be extended and the employee subsequently has a new job? Is the employee then still entitled to the compensation? 

On 5 July 2022, Minister Van Gennip (SZW) set out the government's plans for a future-proof labor market, including a (large) number of important plans in the field of employment law. These plans will be elaborated in bills at the beginning of 2023. In broad terms they are summarized in this blog.

We have listed the most important (upcoming) legislative changes for you.

In 2018, the Supreme Court ruled (in the so-called 'Kolom judgment') that an employee may be entitled to a partial transition payment in the event of partial termination of the employment contract. But what happens to the right to a transition payment if an employment contract is not officially “terminated” and the parties only implicitly make an agreement that fewer hours will be worked? This question recently has been considered by the court of Central Netherlands (judgment 30 April 2021 Central Netherlands District Court).

These days, it is common for employees to make negative statements about their employer on social media or to express themselves in a way that is contrary to the nature of the employer’s business or company. Can the employer undertake anything against such negative statements? Yes, they can. Statements on social media are regularly a subject of dispute in court proceedings. Below I will briefly discuss two recent judgments where the employer had requested termination of employment as a result of statements on Facebook.

Article 7:669 paragraph 3 sub c of the Dutch Civil Code lists the grounds that an employer can submit to the UWV or the subdistrict court judge to terminate the employment contract. One of these grounds is “regularly unable to perform the stipulated work as a result of illness or defects of the employee with unacceptable consequences for the business operations…”.

On September 3, 2021, the District Court of The Hague ruled in a case in which the employer based the request to terminate the employment contract on this ground. The ruling shows why a dismissal on this ground often has no chance.

What was going on?

The employee has been working as a car technician at a car dealership with several branches in the Netherlands since 2013. He was employed at a local facility and was part of a team of five employees working in the workshop. In 2017 he had called in sick 4x (104 hours in total), in 2018 8x (173 hours in total), in 2019 23x (468 hours in total) and until July 10, 2020 13x (400 hours in total). The employer had requested an expert opinion from UWV and it followed from that opinion that UWV was of the opinion that there was frequent absenteeism and that this situation was expected to last longer than 26 weeks.

What did the court rule?

The court first establishes that there is frequent absenteeism within the meaning of article 7:669 paragraph 3 sub c BW. The follow-up question is whether this absenteeism leads to unacceptable consequences for the employer's business operations. According to the court, that is not the case. The employer had stated that customers would be dissatisfied with the workshop activities of the branch, but could not substantiate this, according to the court. In addition, the court considers that a company of a size such as that of this employer (with several branches in the region and throughout the Netherlands) can in principle be expected to take care of absenteeism company-wide. The fact that it is not possible within its organization to provide replacement from another location, because there is a large group with all kinds of different car brands and a mechanic who works for one car brand at one location is not as easy as a mechanic can work for the other. According to the court, a different car brand at a different location has not become plausible. The employer was also unable to demonstrate that there was a (serious) financial disadvantage. The court therefore rejected the request for dismissal.

Conclusion

This court decision once again makes clear that – certainly for larger employers – it will not be easy in the Netherlands to dismiss an employee on the basis of frequent absenteeism. Proof of the high level of absenteeism due to illness is often not the problem, but proof of the unacceptable consequences for the employer's business operations is often an unviable route.

If you have any questions about absenteeism and dismissal, please do not hesitate to contact one of the specialists at Van Bladel Advocaten via (+31) 030-2203111 or info@vanbladeladvocaten.nl

In 2018, the Supreme Court ruled (in the so-called 'Kolom judgment') that an employee may be entitled to a partial transition payment in the event of partial termination of the employment contract. But what happens to the right to a transition payment if an employment contract is not officially “terminated” and the parties only implicitly make an agreement that fewer hours will be worked? This question recently has been considered by the court of Central Netherlands (judgment 30 April 2021 Central Netherlands District Court).

The Dutch government urgently advises to wear a face mask in public indoor spaces. There is no legal obligation (yet) to wear a face mask, but many employers are considering to introduce a face mask obligation into the workplace. What about from an employment law perspective?

As a result of the coronavirus, a large part of the employees has been working from home for more than six months. Now that the number of infections is increasing again, it seems that this will last for a longer period. This blog covers a number of employment law aspects of long-term work from home, such as health and safety rules, the employee’s freedom of choice with regard to working from home, the monitoring of the work by the employer and the reimbursement of (additional) costs. Finally, attention is paid to the phenomenon of ‘home working arrangement’, because we notice that many employers consider to introduce such arrangement.

The holidays have started. What about wages when an employee goes on vacation to an area with a yellow, orange or red travel advice?

Many companies let their employees work from home as much as possible in recent weeks in connection with the corona crisis. Employees are slowly returning to the office now that the virus seems to be under control. Companies will have to ensure that work in the office can be carried out in a safe manner and must therefore take measures to prevent the spread of the virus at work as much as possible. Suppose the employee does not like to return to the office. Can he or she refuse to go back to the office, given the applicability of Dutch employment law? In a case that was brought before the Gelderland District Court, the judge ruled on June 16, 2020 that this was not allowed.

This so-called Victoria ruling of the Supreme Court of 21 February 2020 can have far-reaching consequences for employers who are confronted with a request from their employee to change the employment contract to work fewer hours (based on the Flexible Working Act) or another change proposal that they must reasonably accept as a good employer. Such a request can, under certain conditions, lead to a partial transition payment. Employers must be prepared for such a request to be made in termination proceedings, so that the employee will remain employed if the request is honored by a judge, even with a full dismissal ground. The Supreme Court thus strengthens the position of the employee.

On 1 May 2020, the next change to the NOW was announced and finalized. The group provision has been relaxed, in that operating companies can now also apply for NOW separately if the group's loss of turnover is less than 20%.

The NOW regulation, which was announced on March 31, has already changed in a few areas. This mainly concerns an extra test when submitting a dismissal application for business reasons during the NOW period and a change in the way in which the fine that applies is calculated. In this blog we inform you about the changes.

Today, 31 March 2020, the Dutch government has published the details of the Temporary Emergency Measure Bridging for Work Retention regulation (“NOW”). The NOW aims at making it possible for employers to retain their employees as much as possible in the event of a loss of turnover of at least 20% as a result of the Corona crisis. To this end, a compensation in wage costs is provided of a maximum of 90% of the wage bill, related to the percentage of the decrease in turnover. Below the most important questions and answers are summed up.

The Minister of Social Affairs announced on March 17, 2020 that employers can apply for a compensation of wage costs if they expect at least a 20% loss of turnover due to the Corona crisis. This compensation scheme, the Temporary Emergency Measure Bridging for Work Retention (NOW), temporarily replaces the current reduction in working hours regulation that has expired immediately.

Although the scheme has yet to be worked out in detail - which is expected to happen within the next two weeks - the following is known:

The so-called Corona virus (COVID-19) has also reached the Netherlands. Worldwide measures are being taken to prevent further spread of the virus. What does this mean for local employers and employees? This article answers questions about the obligation of the employer to prevent contamination, the entitlement to salary (whether or not in quarantine), privacy aspects and the Dutch subsidy arrangement on shortening of working hours (“Werktijdverkorting”).