Top five mistakes made by employers when dismissing staff in Dutch Employment Law

 

Our employment lawyer in Amsterdam, Paul Snijders, has more than 30 years experience as a lawyer for employers.

You probably recognize it, every contract has a termination clause. It reads as follows: The employment contract may be terminated prematurely at any time by either the employer or the employee, subject to the agreed notice period’. Clear, right? So as an employer you can always terminate as long as you observe the notice period. Wrong. A termination clause is only useful if you can terminate due to an economic or organizational need. As an employer, you must first go to the UWV to request permission to terminate the employment contract. Only once you have received the dismissal permit may you terminate the employee, subject to a notice period. If you terminate without permission from the UWV, or without the consent of the employee, you can expect a letter from a lawyer and a difficult procedure at the cantonal judge.

It often happens that an employer is fed up with an employee. So then you summarily dismiss that person when your patience has run out. Done. Really? You may only dismiss an employee for an urgent reason. You can only do that in a very serious situation. An urgent reason means serious culpable behavior or omission that makes any cooperation permanently impossible. However, one serious situation is not the other. Our lawyer can clarify that. It really has to be objectively so serious that the employment contract cannot be maintained as a result. A failure to show up at the company doctor’s is usually not enough for this. Theft or fraud, serious threats, violence or work refusal: a judge can also take a different view. Therefore, first contact a specialized lawyer in labor law, because he knows how judges look at an urgent reason in practice.

So if there is only one urgent reason, you are there as an employer, and you can dismiss immediately? That too is questionable. A summary dismissal is only valid if it is given without delay. What is immediate? In practice, it means that the judge will assess whether the dismissal was given without delay or postponement. So as soon as possible after the employer became aware of the urgent reason. Even if it is the weekend, the director is on vacation or the employee does not answer the phone, give the dismissal as soon as possible and make sure you have written proof of the given dismissal, also by what’s app, voicemail or e-mail: days too long waiting with dismissal can cost you as an employer dearly.

If you summarily dismiss an employee with a good urgent reason, then you are not done yet. Sometimes it happens that a particular reason for dismissal is not properly established after a few days. For example: you dismiss an employee for theft from the cash register, but the camera images show a few days later that the employee was only changing money. No problem if you then add something else to the accusations? Such as poor performance, being late a few times, or other demonstrable reproaches from the file? Wrong.

 

Once a reason for dismissal has been given, it is ‘fixed’. This means that, as an employer, you cannot subsequently cite all sorts of other reasons to reinforce the dismissal. If, for example, the reason ‘theft’ mentioned in the letter of dismissal is omitted, then, as an employer, you cannot rectify this afterwards with other reasons for dismissal not mentioned in the letter.

The employee is still in his or her probationary period, so you can dismiss him without giving any reason, without permission from the Dutch judge or the UWV, and without having to give notice. Right? According to our Amsterdam labor lawyer, that too is questionable: not every probationary period is legally valid.

 

For example, the probationary period has only been agreed verbally and is not in writing. Or the agreed probationary period is longer than permitted by law and therefore invalid. This is also the case if, when renewing a contract, a new probationary period starts or if discrimination, for example due to pregnancy, turns out to be the real reason for dismissal during the probationary period. Here too, you should first consult an experienced lawyer.