With the summer officially at our doorstep, the thought of cocktails in the sun will cross the minds of many of us. Aside from the usual gin tonics and wodka-martinis, we can’t help but wonder how the envisaged employment law cocktail will be served.
Currently, an employment agreement may only be terminated if the termination can be based on one of the reasonable grounds exhaustively listed as (a) through (h) in Article 669, paragraph 3, of the Dutch Civil code. It is envisaged that as from 1 January 2020, an employment agreement may be terminated on a combination of two or more reasonable grounds, allowing for a variety of termination grounds cocktails. This new combination ground would be listed in the same article of the Dutch Civil Code under (i), and is therefore called the '(i)-ground'.
The envisaged combination ground does not allow for a combination of all of the reasonable grounds. A termination based on economic circumstances (the (a)-ground) or following long term illness (the (b)-ground) may not be included in the mix.
Although a variety of cocktails in general may sound as a good thing, many questions must still be answered before we can start to 'shake and stir' termination grounds. Will there be sufficient 'reasonable ground' when, for example, the 'underperformance of an employee' and a 'culpable act' each provide half a termination ground, or even less if more reasonable grounds are combined? And, how will it be determined when there is sufficient ground for 'half' a termination ground? Or, should, for example, the underperformance almost fully be able to carry the termination and may the combination only be used to provide the necessary additional argument? As soon as the answers to these questions are available, we will have them for you.
As with every cocktail, it comes with a price. In addition to the statutory severance payment (transitievergoeding), and the possible fair compensation (billijke vergoeding) in the event of gross misconduct on the employer’s part, termination of the employment agreement based on the combination ground shall be compensated by an additional severance payment of maximum half the statutory severance payment.