Employment Law, legal advice for expats
is situated in Heerlen, near Maastricht and Brunssum (NATO JFC). You can
find us using Google maps. We offer a
broad range of services in all aspects of employment law. These services
include drafting all relevant employment documentation, termination of
employment contracts and legal advice on various employment law matters
in the Netherlands. Concerning employer-employee disputes, we have ample
experience in litigation before the cantonal
judge, kantonrechter. We
also offer the option of appropiate dispute resolution (ADR) for the
workplace via evening sessions. We of course provide legal advice for
offered on this page is intended for information purposes only and
therefore does not imply a specific advice about your situation. The
content of this website may not be copied for commercial use, nor
may it be published, altered or made available to third parties.
Although our site may contain links to other websites, we are not
responsible for content, links, or privacy on any of those sites.
Contact us by phone +316 50 55 55 00 or by e-mail secretariaat @ rechtspraktijkbolton.nl
Dutch labour law is well evolved and differs markedly from
other EU legal systems. Employment law in the Netherlands does not
consist of separate labour laws, but is included in the Dutch Civil Code, Burgerlijk Wetboek. The Dutch Civil Code consists of 9 large "chapters", each
called a "Boek" (book). Dutch
employment law is codified in Burgerlijk
Wetboek Boek 7: 610-686 BW. The employee, especially with
respect to dismissal, is better protected than in many other countries.
In the case of termination by notice permission from the labour office UWV-Werkbedrijf must
be obtained beforehand or else the notice is void
without legal effect.
Timely legal advice will therefore pay for itself in the long
run as rushing a termination or dismissal of an employee can become
a costly affair.
Working via a
temporary employment agency, secondment arrangement or payrolling
Dutch temporary employment agencies may not charge you costs for
placing you and has to pay you according to the collective labour
In the case of a secondment agreement
with a foreign company you are entitled to the employment conditions
applicable in Holland. Usually a collective labour agreement is
applicable to the sector in which you work. Your employer has to
inform you about the stipulations of said CAO.
In the case of payrolling your employer has placed the administration
of an employee with a payrolling enterprise. In the case of
termination by notice via the labour office however, there are some
pitfalls to watch out for. Contact us for advice.
Termination of the employment contract
The termination of employment contracts differs markedly
from most foreign legal systems, in particular with respect to the well
evolved degree of protection against dismissal. There are five ways in
which contracts of employment may be terminated under Dutch law: 1. During the trial period; 2.
By notice; 3. By mutual consent
/ termination agreement; 4. By
summary dismissal; 5. By
termination agreement is the most favoured - and polite - way of
parting ways. Sometimes people just don't get along and there' s a
clash of characters. In a written agreement employer and employee both
agree to end the employment agreement without according fault. The
employee can then apply for unemployment benefits or is free to seek
employment elsewhere if there are no restrictive clauses. Usually
compensation is awarded be it lump sum or paid leave (garden
leave) during the notice period.
these 5 situations will be explained below.
1. Termination during trial period
notice - voorafgaande opzegging
During the trial period, proeftijd,
either party may terminate the contract of employment at will.
Termination is with immediate effect and without prior notice. Art. 7: 652 BW stipulates that
a contract for a definite period of 1 year has a maximum trial
period of 1 month. The trial period with a
contract for an indefinite period may not exceed 2 months. However,
a collective labour agreement (CAO)
may stipulate otherwise.
With respect to termination by notice, opzeggen van de arbeidsovereenkomst, there
are contracts for a definite period and contracts for an indefinite
period, art. 7: 667 BW.
for a definite period
A contract of employment for a definite period, arbeidsovereenkomst
voor bepaalde tijd, terminates by operation of law at the end
of this period without prior notice. The same applies to the second
and third contract of employment for a definite period provided
that the total duration of all such contracts of employment does not
exceed 36 months. The second and third contracts, like the original
contract, terminate by operation of law at the end of the respective
If a fourth successive contract of employment for a definite period is
entered into or the three year / 36 months limit is exceeded, the fourth
or last contract of employment is then considered to have been for an
indefinite period and the above rule concerning termination by operation
of law does not apply any more. If the time span between contracts of
employment for a definite period is three months or longer, however,
they are not regarded as successive but as separate contracts of
employment for a definite period. Neither the original nor extended term
of a contract for a definite period may be terminated by notice before
the expiry of the period, unless agreed to by parties
otherwise. However, a contract for a definite period may still be
terminated by mutual consent, summary dismissal or judicial termination.
Contracts for an indefinite period
A contract for an indefinite period, arbeidsovereenkomst
tijd, as "indefinite" implies, does not expire on a
particular date but continues indefinitely until terminated by notice,
or by one of the other methods discussed in this section.
Termination agreement - beëindigingsovereenkomst
Before notice may be given, permission from the
labor office UWV-Werkbedrijf
in the form of a permit must
be obtained. In the absence of such a permit, the notice is void. This
applies whenever the termination by notice of a contract is within the
sphere of the Netherlands labour market, even if the contract of
employment is not governed by Netherlands law. That can be the case if
the work is permanently performed in or from the Netherlands (and the
employee is likely to claim Dutch unemployment benefits, the WW
). However, a permit is not required in case of termination
(see 1.) during the trial period, (see 3.) by mutual consent, (see
4.) by (justified) summary dismissal, - in the event of bankruptcy
or receivership - concerning the termination of the contract of a
managing director, bestuurder,
of a limited company (ltd.), besloten
The labor office UWV-Werkbedrijf will only grant a permit if the
proposed termination is deemed objectively reasonable. The employer
must therefore indicate the grounds on which his request is based
while the employee against whom it is made may submit a defence, verweerschrift. Thus, permission
is not granted automatically as a simple posterior formality. The
whole procedure normally lasts eight weeks although in practice it may
take longer if a hearing is scheduled or further documents are
requested as evidence. This can be the case if the proposed layoff,
redundancy or downsizing is based on business economic reasons, called
ontslag wegens bedrijfseconomische
omstandigheden. Then the employer must provide a financial
report by an accountant that proves that there has been a dowturn in
business for the past 3 fiscal years and that downsizing the workforce
is the most cost effective measure.
Once an labor office permit has been obtained, notice of
termination may be given, subject to certain prohibitions. The
statutory notice period to be observed by an employer is : 1
month with an employment period of 5 years or less; 2 months with an employment period between 5 - 10 years; 3 months with
an employment period between 10 - 15 years; 4 months with an employment
period of 15 years or longer.
An employee must observe a notice period of one month. This statutory
period may be increased or decreased in his individual contract of
employment. In the former case, the maximum period which the employee
can be required to observe is six months and the notice period to be
observed by the employer must be at least twice as long as the period to
be observed by the employee, unless otherwise agreed in a collective
labor agreement (CAO).
If notice is given after a labor office permit, ontslagvergunning,
has been obtained, the notice period to be observed by the employer is
reduced by one month. A minimum period of one month must be observed.
Even after an labor office permit has been obtained, the giving of
notice is prohibited by law in certain situations, such as while the
employee is unable to perform his work due to illness, unless the
employee has been ill for at least two years or the employee has
reported being ill after the labor office
received the request for a permit. Nor may a contract of
employment be terminated by notice while an employee is pregnant.
These situations where termination by notice is prohibited are
called opzegverbod and
have been codified in art. 7:
670 BW. In some cases termination is possible if the
employee is imprisoned for an extended period, chronically late or
employment for definite and indefinite periods may be terminated by
mutual consent, beëindiging met
wederzijds goedvinden. No notice is required. Case law has
established strict requirements with respect to the validity of the
termination by mutual consent since this often has detrimental
consequences for the employee (for example, if the statutory notice period hasn't been observed loss of
entitlement to unemployment benefits for the duration of
said period, called fictieve
opzeggingstermijn). In order for it to be held valid, the
employee's consent must have been given explicitly and unequivocally.
Termination is therefore usually in the form of a written agreement, beëindigingsovereenkomst or vaststellingsovereenkomst. A good
criterium is that the employee must not be at a disadvantage
(financially) when compared to a regular termination by notice.
4. Summary dismissal - ontslag op staande voet
If an urgent cause exists, an employer may summarily dismiss
an employee. It's known as ontslag
wegens een dringende reden or ontslag
op staande voet and has been codified in art.
7: 677 BW and 6: 678 BW
(Dutch Civil Code) In such a case, the contract of employment is not
terminated by notice but with direct effect. Consequently the provisions
which apply to termination by notice do not have to be observed. An
urgent cause consists of a situation which is such that the employer
cannot reasonably be expected to allow the employment to continue. Clear
examples are theft, fraud, embezzlement or divulging confidential
information to third parties.
In most cases, however, an urgent cause depends on the specific
circumstances of the case. If an employer is hesitant in effecting
a summary dismissal - such as instant removal from the workplace - it
will be void regardless of whether an urgent cause did actually exist.
If an employee wishes to contest the summary dismissal, there are
two possibilities. He may claim that the termination was void since no
labour office permit was obtained or he may acquiesce but seek to
recover damages via the on the grounds that it was unlawful. These
damages are limited to the amount of salary which the employee would
have received during the notice period had it been properly observed, or
to the actual damages directly resulting from the dismissal. In most
cases the employee will claim that the termination was void, especially
if he has become unemployed as a result. If the contract contains a
non-competition clause the employee may prefer to recover damages,
since, as a consequence of this liability, the employer is thus
prevented from invoking such a clause.
5. Judicial termination - ontbinding door de kantonnrechter
Both employers and employees may request that the tribunal -
the cantonal judge kantonrechter -
terminate a contract of employment on the grounds of "serious cause".
It's known as gewichtige reden and
has been codified in art. 7: 685 BW. A
serious cause will be deemed to exist if either:
I. the circumstances are such
that they would have amounted to an "urgent cause" for summary dismissal
if the contract had been terminated instantly; or,
II. there is a change of
circumstances of such a nature that the contract should in all
reasonableness be terminated instantly or on short notice.
The employee may submit a written defence, verweerschrift.
If the court deems that serious cause does indeed exist, it will
terminate the contract. If it is granted on the basis of serious cause
due to a change in circumstances, the court may award the employee
compensation in an amount which it deems reasonable. Compensation is
calculated using a formula based on cantonal jurisprudence, the kantonrechtersformule.
Compensation is generally calculated according to the
following formula, the kantonrechtersformule
: A x B x C
A is equal to the employee's years of service
with respect to his/her age. Years of service before the age of 35
count for 0,5; between 35 and 45 count for 1, between 45 and 55
count for 1,5 and years of service after the employee has reached the
age of 55 count for 2;
B is equal to the employee's salary, including his holiday
allowance and other structural benefits such as a bonus;
C is the correction factor, which in most cases will be the
factor 1. Depending on the circumstances - who is at fault and to what
degree - C may be adjusted upwards or downwards by the judge.
termination wrongfull dismissal - kennelijk onredelijk ontslag
In Holland, the concept of wrongful
dismissal / kennelijk
onredelijk ontslag refers to
dismissal contrary to the employment contract which is in turn
ruled bij Dutch law art.
7: 681 BW. It constitutes
premature termination due to insufficient notice or lack of
(valid) grounds. Wrongful dismissal will tend to arise as a claim
by the employee so dismissed who in turn has the burden of proof.
Art. 7: 681 BW and jurisprudence however, are well evolved in
Holland. If the dismissal is deemed wrongfull by the cantonal
judge, compensation will be awarded.
for wrongfull termination are € 800,- (ex 21% VAT & ex court
charges) and 15% of the compensation sum awarded.
of the employment contract
clause - concurrentiebedingen
clause / non-compete clause, non-concurrentiebeding
or just concurrentiebeding, are
used in Dutch employment contracts under which a - former - employee
agrees not to pursue a similar profession or trade in direct
competition against the employer.
Due to the
complexity of non-competition clause under Dutch law - art.
7: 653 BW and its extensive jurisprudence - it is not
possible to address this matter more in detail here. But there are
some interesting issues to keep in mind.
of such a restrictive clause in the employment contract takes into
account that upon their termination or resignation, an employee might
start working for a competitor or set up his own business. Using the
knowledge gained from his former employer would give him a competitive
advantage. Most Dutch judges will deem such a non-competition clause
to be legally binding as long as the clause contains reasonable
limitations as to the geographical area and time period in which a
former employee may not compete. The Dutch courts have held that an
individual cannot be barred from carrying out a trade in which he has
been trained except to the extent that is necessary to protect the
reasonable interests of the former employer.
judge can however annul the non-competition clause when the former
employee is disproportionately affected by the clause. A
non-competition clause may have become ineffective over time. This can
occur if the employee’s job within the company has significantly
changed. An employer can also not claim any rights from the
non-competition clause if he was at fault in the termination of the
employment contract ie the termination was irregular. As
the issue of a non-compete clause under Dutch law is
fairly complex, it is always wise to seek legal advice before taking
agreement - relatiebeding
non-solicitation agreement, relatiebeding,
is closely related to the non-competition clause. It is a
clause by which an employee agrees not to solicit - or even
accept - business from the employer's customers or business
relations. It prevents a former employee or his new employer from
gaining a competitive advantage by using business sensitive
information such as customer / client lists.
confidentiality agreement - geheimhoudingsclausule
non-disclosure / confidentiality agreement, geheimhoudingsclausule, is used
in Dutch employment contracts to prevent an employee from
confidential information about a former employer's operations or trade
secrets, patents, upcoming products and marketing plans.
By using this knowledge a competitor could
unfair advantage by headhunting / poaching employees with valuable
ADR for the workplace, Mediation
Sometimes all is not lost. Dismissals remain costly affairs, both
financially and in terms of lost productivity. Litigation is not the
"be all end all" solution for a workplace dispute. Not to mention
the distrust created between co-workers in the aftermath of a nasty
If workplace harassment or mobbing has occurred, the judge may see
fault if the employer remained passive and adjust the compensation
The burden of proof is always on the employer in these cases.
Alternate or appropiate dispute resolution (ADR), better known as
mediation, can be an option if the stakes are high and the potential
loss regrettable. We can help by using evening sessions where the
parties concerned are first interviewed separately about their
complaints and grievances. Using issue-based problem solving a
positive outcome can be achieved if the parties concerned show their
willingness. Depending on the sessions needed a sum-arrangement can
be agreed to.
The Dutch legal profession does not make use of fixed rates.
It is customary in the legal profession to submit a declaration of
expenses on the basis of an hourly rate. It is also customary that, even
if the action is won, a part of the costs for legal aid is charged to
the client. The costs of a lawsuit are determined by a judge on the
basis of fixed tables. These costs are generally to be paid by the
unsuccessful party. The remaining costs incurred by the client for legal
advice and the legal proceedings are charged to the client.
Our hourly legal fee is € 181,50 including VAT. This is the
flat fee for standard cases. If the task at hand requires a
distinct specialisation or when urgency is of utmost
importance a sum-arrangement can be agreed to.
Legal and court charges are decreed by law. In civil
(employment) cases the services of a bailiff are called in. A bailiff
serves the summons to the defendant and after the court case serves a
writ upon the opposite party.
information offered on this page is intended for information
purposes only. It does not imply a specific advice about your
situation nor does it constitute a binding legal relationship with
Rechtspraktijk Bolton. As Dutch law is dynamic in
nature, we cannot guarantee the actual correctness of the
information on this website. For specific advice you can contact
us for an appointment by phone +316 50 55 55 00 or by e-mail secretariaat @
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