Section 7:670 of the Dutch Civil Code (‘DCC’) provides that an employer may not give notice of termination of an employment agreement with an employee who is a member of a works council, a central or group works council, a standing committee of such councils or of an employee representative body. Section 7:670a DCC does allow employers to give such notice, provided that they have obtained the prior consent of the Subdistrict Court. The Subdistrict Court may only grant such consent if the employer has shown prima facie that his notice of termination does not relate to the employee’s membership of an employee participation body. In other words: the employee’s participation task may not be the reason for the termination.

The Facts

A dismissal case as described above was recently presented to the Subdistrict Court of Eindhoven (Subdistrict Court of Eindhoven in preliminary relief proceedings, 19 April 2013, JAR 2013/129). In this case the employer had given the employee notice of termination as of 1 February 2013 with the consent of the UWV. After receiving the written notice of termination, the employee relied on the voidability of the termination because he was a member of the Employee Representative Body (‘ERB’) and because the employer had not obtained the consent of the Subdistrict Court to the termination. On these grounds the employee claimed continued payment of his salary starting from 1 February 2013.

Judgment

In these proceedings initiated by the employee, the employer took the position that the dismissal had not been set aside in the correct manner, and that there was no official ERB within the company, so that the employee would not be entitled to protection against dismissal.

The Subdistrict Court dismissed these arguments. As for the legal validity of the notice given, the Subdistrict Court held that it was sufficiently clear to the employer that the employee relied on the prohibition of termination because of his membership of the ERB. Since no requirements of form apply for a reliance on voidability, this defence was not accepted. The argument that there was no formal ERB was not successful either. The Subdistrict Court found that the way in which employee participation rights were being exercised in practice was in line with the statutory provision about the ERB (Section 35c of the Dutch Works Councils Act). Therefore, the Subdistrict Court held that a formal participation body existed indeed, and that consequently the employee was entitled to protection against dismissal. Although the UWV’s consent had been obtained in this case, the employer had neglected to ask the consent of the Subdistrict Court as well, and that was the reason why the employment agreement had not been validly terminated. Hence the Subdistrict Court’s ruling that the employee was entitled to continued payment of his salary.

Tips

  • Unlike many people think, it is indeed possible to terminate the employment agreement of an employee who serves on an employee participation body. However, to do this you should always require not only the consent of the UWV but also that of the Subdistrict Court.
  • For employers, the most efficient way to avoid having to obtain the consent of two different bodies is to request the necessary consent and rescission of the employment agreement in one legal action. This saves time and costs.