This update provides an overview of the latest important developments in Dutch Employment legislation and case law.
Strengthening employees’ legal right to work from home
On 5 July 2022, the Dutch House of Representatives adopted the legislative proposal for the Work Where You Want Act (Wet werken waar je wilt) (“the Act”). It is very likely that the Act will also be approved by the Dutch Senate. When adopted, the Act will strengthen the legal rights of employees in the Netherlands to work from another location.
Pursuant to the Act, employees may request to work from home or another location in the European Union. The employer should honour such request from an employee if, according to standards of reasonableness and fairness, the interests of the employee outweigh the interests of the employer in view of the circumstances of the case. The envisaged effective date is 1 January 2023.
Protection for whistleblowers
The Dutch legislative proposal implementing the EU Whistleblowers Directive is currently being discussed in the Dutch Parliament. The deadline for implementation of this Directive has already lapsed on 17 December 2021. Together with multiple other EU member states, the Netherlands failed to implement this Directive in time. It is expected that the legislative proposal will be further discussed in the House of Representatives (Tweede Kamer) and adopted after the summer break.
Employers with 50 or more employees should comply with this new legislation and amend their internal whistleblowing procedures. The most important change is that whistleblowers will no longer have to report their concerns internally first.
Obligation for employers to have a confidential advisor/counsellor
Presently, a legislative proposal amending the Dutch Working Conditions Act is pending which will require employers to mandatorily have a confidential advisor/counsellor (vertrouwenspersoon). Employers are free to choose an internal or external confidential advisor/counsellor, or both.
Pursuant to Article 3, paragraph 2 of the Working Conditions Act (Arbeidsomstandighedenwet), the employer is primarily responsible for protecting its employees against undesirable conduct in the workplace and creating a safe work environment. To this end, the employer must take appropriate measures. As a consequence, it is advisable to sharpen policies, and (internal) reporting procedures and to raise awareness amongst employees by i.a. arranging trainings on (sexual) harassment.
Recent case law
Dismissal of statutory managing director leads to termination of employment contract, unless specific arrangements are made on the consequences of the corporate dismissal for the employment relationship
In this case, the employer only wanted to terminate the corporate position of the statutory managing director and continue the employment contract in another position. Under Dutch law, a corporate dismissal also effects the end of the employment relationship unless agreed otherwise or if the managing director is ill. This case shows that directors can also demand the employment dismissal and the associated compensation under employment law against the wishes of the employer. This is only different if explicit agreements have been made to maintain the employment relationship in the event of corporate dismissal. The agreement that the employment contract would have to last six years was not sufficient to constitute an exception to the coincidence of corporate and employment dismissal. In conclusion, if it is intended to not automatically terminate the employment relationship of a statutory managing after a corporate dismissal, clear prior agreements are essential.
Court of Appeal ‘s-Hertogenbosch July 28th 2022, ECLI:NL:GHSHE:2022:2654
Instant dismissal for employee who applied under a false identity
An employee was working for an employer in 2015. After one year this employment agreement was terminated by court’s decision on the basis of a disrupted working relationship. In 2021, the employee applied again for a job with the same employer under a different name and without disclosing that she had worked for the employer before. After several incidents at the workplace, the employer found out her real identity and instantly dismissed the employee. The Court upheld the instant dismissal and ordered the employee to pay a fixed compensation to the employer equal to the notice period the employee should have taken into account (EUR 43,561.64 gross). This case shows among others that it is always important to check the identity of new employees, which also is a legal requirement under Dutch law. Moreover it shows that if an employee does not disclose relevant information in the job application process, this may be grounds for an instant dismissal.
Court Amsterdam June 26th 2022, ECLI:NL:RBAMS:2022:3622
Instant dismissal of employee who worked two full time jobs from home
An employee was working two full time jobs from home. Once one of the employers found out about this, the employee was instantly dismissed. The Court upheld this instant dismissal, based on serious culpability on the part of the employee. Therefore, the employer also did not have to pay a statutory transitional compensation.
Please note that as of 1 August 2022, new employment legislation has entered into force as a consequence of which a sideline activities clause in an employment contract will be null and void if it provides an absolute prohibition of other (paid or unpaid) side activities. If sideline activities require the prior written consent of the company, the employer should, upon a written request of the employee, be able to give an objective justification for the prohibition of a specific sideline activity. This could be the protection of confidential business information, observing working time legislation, health and safety and the avoidance of conflicts of interest, for example. It is not required that the objective justification for the ban on sideline clauses is already mentioned in the employment contract (or, for example, in an employee handbook). This could also be communicated to the employee at the time when the employee requests the employer’s permission for a sideline activity or if the employer is confronted with a sideline activity for which no permission was requested.
Court Rotterdam May 31st 2022, ECLI:NL:RBROT:2022:4614