By Jan Dop.
Jan Dop, LL.M. is partner and Head of the Embassy Desk at Russell Advocaten (embassydesk@russell.nl). More information about the expertise at Russell Advocaten for Embassies, Consulates and Diplomats can be found at: www.russell.nl.
There have been major changes to employment law in the Netherlands in 2015, and even more changes are yet to come. These changes include strengthening of the legal position of flex workers, and reforming dismissal law. Some of the changes will have serious consequences for the locally hired personnel of Embassies, Consulates and Diplomats. We will discuss these amendments in a series of articles in Diplomat Magazine. Previous articles dealt with fixed-term employment contracts, the tightening of the regulation regarding successive fixed-term contracts and the outlines of the new dismissal law. This article will deal with the consequences of the introduction of two mandatory dismissal procedures as from 1 July 2015.
Up until 1 July 2015, an Embassy doesn’t need a permit to dismiss an employee (unless for prohibition of termination). From this date, an Embassy must, just like any other employer, end an employment contract by mutual consent or follow one of the two mandatory dismissal procedures, depending on the reason for dismissal.
Dismissal for economic reasons or long-term incapacity for work: UWV
For dismissal for economic reasons or long-term incapacity for work, the employer will need permission from the UWV.
Redundancy criteria in case of dismissal for economic reasons
The principle of proportionality will still apply when it comes to designate employees for dismissal for economic reasons. In brief, within a certain category of exchangeable positions, employees with the shortest length of service will have to be dismissed per age group. However, in the future the employer will get the possibility to keep employees out of the proportionality system whose performance is above average or whose potential is above average.
Termination within four weeks after permission
After having received permission to terminate the employment, the employer will have to terminate the employment contract within four weeks. If the employment contract is not terminated within four weeks, the permission will be invalid and must be requested once more.
If the employee does not agree with the permission and the subsequent termination of employment, he or she can request the subdistrict court to reinstate the employment contract and to grant him or her a fair compensation. The subdistrict court shall assess the request against the same criteria as the UWV.
If the UWV does not grant permission to terminate the employment, the employer will not be able to lawfully terminate the employment. In that event, the employer may request the subdistrict court to terminate the employment. The subdistrict court shall assess the request against the same criteria as the UWV or the redundancy committee.
Dismissal for personal reasons or on grounds of a disturbed working relationship: subdistrict court
Dismissal for personal reasons (in contrast to long-term incapacity for work) or on grounds of a disturbed working relationship is only possible by submitting a request to the competent subdistrict court to set aside the employment contract.
Appeal and cassation
In contrast to the current situation, it will be possible to appeal or to appeal in cassation to all decisions of the subdistrict court, thus also to rejected or allowed requests for dismissal.
The following submission will deal with what kind of dismissal procedure will be mandatory in what kind of situation.
