Russell Advocaten advises employers on all aspects of labour / employment law and dismissal, Dutch, European and international. We will assist you during negotiations and in legal proceedings. We can also help you with personnel management and reorganisations.
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Please contact us via +31 20 301 55 55 or by e-mail.
Our clients often ask the following questions. Do you have any other questions or would you like to submit a dispute to us? Call us at +31 20 301 55 55 without obligation or send us an e-mail.
You can enter into a permanent employment contract (‘permanent contract’) with an employee, without a set end date.
However, employers often have a need for more flexibility. You can also enter into a fixed-term employment contract (‘temporary contract’) with the employee, with a set end date. Upon reaching this date, the employment contract ends automatically.
Other flexible employment relations can also meet your needs for flexibility, such as:
You cannot conclude unlimited fixed-term employment contracts with an employee! A fixed-term contract will automatically become a permanent employment contract if:
Interruptions of less than six months between successive temporary contracts are included in the calculation. If there is an interruption of more than six months, a new series will start to run. In the case of a collective agreement, it is possible to deviate from this chain rule.
A probationary period can be agreed upon under three conditions:
The statutory deadlines are:
If the three conditions are not met, the probationary period clause is null and void and the “normal” dismissal rules apply. The probationary period clause is also null and void if the employee has previously worked for you as an agency worker or payroller or on the basis of a temporary contract.
During the probationary period, both the employer and employee can terminate the employment agreement with immediate effect. You do not need a reasonable ground for the termination and a preventive test at the UWV or the subdistrict court is not necessary. Nor do you have to take into account the notice period.
You may – in consultation with the employee – decide for yourself what is included in the employment contract. Please note: Certain provisions must meet specific requirements in order to be legally valid.
The following provisions may be useful to include:
The step-by-step guide shows you exactly which step you have to take at which time after your employee has reported sick. In short, you need to take the following steps:
In addition, you must conduct a progress interview with your employee about developments in the reintegration process at least once every six weeks.
In the event of frequent short absence due to illness we advise you to talk to your employee and to suggest to him or her to see a company doctor. The company doctor can try to find out the cause for the frequent absence.
You can also include in your sickness absence protocol that an interview will take place after three absences due to illness within one year.
During the first two years of illness you must continue to pay wages and make efforts for the reintegration of the employee:
During the first two years of illness you must continue to pay at least 70% of the employee’s salary. Is this less than the statutory minimum wage? Then you must pay the minimum wage during the first year of illness. This does not apply to the second year of illness. Then, you may pay 70% of the wages, even if this is less than the statutory minimum wage.
You must make an active effort for the reintegration of your employee. You must give the employee the opportunity to return to his or her own job. If that is not possible, you have to look for other suitable work within your own company or at another company. When guiding your sick employee, you must be assisted by a company doctor.
If you make insufficient effort for the reintegration of your sick employee, the UWV can impose a wage sanction. In that case you will have to continue to pay salary after two years of sickness for up to one more year. Tip: Ensure that all your reintegration efforts are reported in writing in a file!
Your employee must make active efforts for recovery and reintegration. Important reintegration obligations of the employee include:
Yes. If your employee does not cooperate with his or her reintegration obligations, you can suspend or even cease the obligation to continue to pay wages, under certain circumstances.
You can also agree with your employee that there will be no entitlement to wages during the first two days of illness (‘waiting days’). On the one hand waiting days can create a threshold for employees to report ill. On the other hand they might stimulate longer absenteeism due to illness: Employees will remain ill longer than two days in order to receive wages. Waiting days do not apply in case of any sickness notification. Does your employee fall ill again within four weeks? In that case you are not allowed to deduct waiting days again: You must pay wages from the first day of illness.
If it turns out that your employee can no longer work, he or she can apply for early WIA-benefits. If your employee gets early WIA-benefits (IVA), you are allowed to deduct the WIA-benefits form the wages you must continue to pay.
A statutory director is dismissed by the general meeting of shareholders (AVA) or the Supervisory Board (RvC).
Often the director is also an employee of the company. In that case he has a ‘dual legal relationship’, a relationship under employment law and corporate law. The dismissal of the director under corporate law by the general meeting of shareholders or the Supervisory Board then also entails the dismissal under employment law.
Thus, all that is needed for the dismissal of the statutory director is a valid decision by the general meeting of shareholders or Supervisory Board. Make sure that all corporate law rules are complied with! If these rules are not complied with, the dismissal decision may be null and void or can be cancelled. In addition, there must be a reasonable ground for the dismissal. Otherwise, the director can claim a reasonable compensation.
Please note: If the director has been appointed within a group of companies as a statutory director of one company and has concluded an employment contract with another company, the aforementioned does not apply. In that event the dismissal under corporate law does not result in dismissal under employment law.
You can terminate your employee’s employment contract in different ways:
Premature termination of a temporary employment contract is only possible if this has been agreed in writing:
If a premature termination clause has been agreed upon, for the employer the “normal” rules for termination apply. In other words: You can only terminate an employment contract prematurely with permission from the UWV, via a request for dissolution to the subdistrict court, or with the employee’s agreement. You must also observe the period of notice for termination. Your employee can also terminate the employment contract prematurely, provided that he or she observes the period of notice for termination.
If no premature termination clause has been agreed upon, in principle, the employment contract cannot be terminated prematurely. If the contract is still terminated, the non-terminating party can claim damages before the subdistrict court. In the event of wrongful premature termination by the employer the employee can also request the annulment of this termination before the subdistrict court.
Without a premature termination clause, a temporary employment contract can be terminated prematurely:
In principle, a temporary contract ends automatically – without a need for prior notice – on the agreed end date.
You must inform the employee about the continuation of the employment relation no later than one month before the end of the contract (‘notification obligation’). You must notify your employee in writing whether or not the employment contract will be continued and if so, under what conditions. What if you do not notify the employee (on time) whether or not the employment contract will be continued? In that case you are obliged to pay the employee a compensation. If you do not fulfil the notification obligation and the contract will be continued, the contract will be deemed to be continued for the same time (but for a maximum period of one year) under the same conditions. You do not have a notification obligation in the case of a temporary contract in which the end date is not set on a calendar date or which has a duration of less than six months.
When an employment contract is terminated upon your initiative, you must pay the employee transition compensation. The transition compensation depends on the length of service and the employee’s salary. In some cases, however, you do not need to pay transition compensation at all or a reduced compensation. In other cases, you must pay higher transition compensation.
If the dismissal is attributable to serious culpable acts or omissions on your side, the court can grant the employee a reasonable compensation on top of the transition compensation. The amount of the reasonable compensation will be determined by the court.
Sometimes, you do not have to pay transition compensation or you have to pay a lower or higher transition compensation amount:
You need not pay a transition compensation if:
You can apply for compensation from the UWV for transition compensation paid in the event of dismissal of an employee who has been ill for more than two years.
A statutory director is dismissed by the general meeting of shareholders (AVA) or the Supervisory Board (RvC).
Often the director is also an employee of the company. In that case he has a ‘dual legal relationship’, a relationship under employment law and corporate law. The dismissal of the director under corporate law by the general meeting of shareholders or the Supervisory Board then also entails the dismissal under employment law.
Thus, all that is needed for the dismissal of the statutory director is a valid decision by the general meeting of shareholders or Supervisory Board. Make sure that all corporate law rules are complied with! If these rules are not complied with, the dismissal decision may be null and void or can be cancelled. In addition, there must be a reasonable ground for the dismissal. Otherwise, the director can claim a reasonable compensation.
Please note: If the director has been appointed within a group of companies as a statutory director of one company and has concluded an employment contract with another company, the aforementioned does not apply. In that event the dismissal under corporate law does not result in dismissal under employment law.
On the basis of the Work and Care Act (Wet Arbeid en Zorg (WAZO)) the employee is (under circumstances) entitled to the following types of (care) leave:
Tip: Include a list of the different types of leave in your employee handbook.
In principle, employees are not obliged to take their holidays at a time determined by the employer. The general rule for taking holidays is that the employer has to agree to a request from the employee. Only if substantial business interests do not allow for it, the employer may refuse a request and determine the holiday period for the employee himself. In practice, this mainly concerns the continuity of the business, or fixed holiday periods as for schools and the construction industry. It does not include a shutdown due to the corona crisis. Because of the NOW scheme and other government support measures the employer has, after all, no interest to make employees take their holidays just now.
The start of a new year brings not only new resolutions and crowded gyms but also important changes in laws and regulations. This year is no exception, with several significant amendments to employment law that took effect on 1 January 2025. Here, we outline the key points to watch out for as an employer or employee.
The holiday season is approaching, a time of joy and days off for many. However, not everyone finds these holidays equally meaningful.
On Monday 4 November 2024, Russell Advocaten Russell Advocaten will host a seminar on Dutch labour law for diplomats, consular agents, and administrative staff from Embassies and Consulates in collaboration with Diplomat Magazine.
