Most people have undergone the gruesome covid lockdown in 2019 and 2020. It has greatly reshaped the working environments of the Dutch labour markets. In such difficult times where the foreseeable economic situation becomes more uncertain than ever before, especially the ongoing tariff and trade wars, enterprises in the Netherlands are struggling for survivals. It is important that workers and expats in the Netherlands to be equipped with more practical knowledge in the labour law field. In this article, Amice Advocaten will inform you of some necessary Dutch labour law information to recognise your own rights and obligations as an employee.
Q1. Can my employer terminate my employment contract prematurely?
Answer: Principally no. Under Dutch labour law, different legal procedures are set for different early terminations of an employment contract. Pursuant to Section 7:669 Dutch Civil Code, an employer must, for example, first obtain the permission from the Dutch labour department (UWV). There are strict conditions. Dismissals without such a permission is illegal. See also our blog post on the topic of dismissal requests directed at the UWV.
Employee can litigate against his/her employer before the district court within two months of the termination. If the employer dismisses the employee for reasons such as “unsatisfactory working performance”, “deteriorated relationship” or “serious fault committed by the employee”, the corporate will still have to resort to the court’s judgement for the dismissal.
Q2. Can my employer reduce my salary due to the economic reasons?
Answer: No. Even in times of economic hardship your employer is still obliged to pay your salary as stated on your employment contract, or the new one agreed by both parties mutually. In fact, during the covid period, the Dutch government has launched some relieving measures tailored to the crisis such as subsidising the employers up to 90% of the salary expenditure. Under the Dutch labour law, employees have the right to get their salary as stated in their labour contracts even if their workload is less than usual. This adheres to the principle of ‘good employer practice’ and ‘good employee practice’ (in Dutch: goed werkgeverschap en goed werknemerschap) pursuant to the labour law in the Netherlands. As a ‘good employee’, he/she shall accept certain reasonable modifications of his/her job content on a temporary basis. For instance,
- in order to assure a non-stop 24/7 operation of a production line, the employer may request the employee to change from morning shift to evening shift; or,
- due to the economic hardship or lockdown, the employer may request the employee to take his/her annual paid leave during this period as their workload significantly reduces; or,
- your job content deviates from what is stated on the employment contract; or,
- the employer postpones the disbursement of the annual bonus.
According to Stoof/Mammoet case in 2008, employees have the obligation to accept the foregoing measures as long as they are reasonable and inevitable under the current circumstances.[1] Likewise, a ‘good employer’ shall have his/her obligations to accept the reasonable demands from the employees, for example:
- due to urgent family reasons, the employees shall be allowed to work at home (except in some cases where the presence of the employees at the workplace is necessary).
It should be noted that some employment contracts may include the “unilateral modification” clause. That being said, employers must still comply with “reasonableness and fairness principle” if such clause is to be used.
Q3. Is there any legal consequence if my employer cut my salary or withhold it even?
Answer: Employers have no right to cut or withhold the salary without a legal basis. According to the Dutch labour law, if the employer withholds the salary payment, the court may impose additional penalty (up to 50% of the amount owed) starting the fourth working day of the upholding.
If your employer is withholding your salary, contact Amice Advocaten immediately and we will assist you swiftly to claim the amount owed.
Q4. How much is a sick employee entitled to his/her pay?
Answer: Pursuant to the statutory regulations, employees are entitled to be paid 70% of his standard salary during sick leave. This clause has, nonetheless, been reformed in most collective labour agreements (CAO) in different business sectors that choose to adopt the CAO, where the employees are usually entitled to 100% of salary for the first year of the sick leave, then 70% for the second year and so forth. Under certain conditions, employers have the right to dismiss a sick employee when:
- The employee has been sick for over 104 weeks; and,
- The employee is not expected to recover in the next 26 weeks; and,
- The employer has got the permission from the UWV.
During the sick leave, employees have the obligation to be treated properly and be reviewed by the corporate’s medical practitioner to analyse the health capability of that employee the possibility of returning to his/her work, as well as advising the adjustments that might have to make for that employee’s return. If the employee refuse to cooperate with the corporate doctor, the employer could take legal actions.
Q5. Am I entitled to my salary if I stay home to take care of my sick family member?
Answer: According to Dutch Job and Care Law (Dutch: Wet arbeid en zorg), employees are entitled to their salaries if they are absent at work in order to take care of their immediate relatives, which is known as the care leave (in Dutch: zorgverlof). However, the length of the care leave per annum cannot be more than twice of his/her weekly work time. For example, if you work four days a week, then you are entitled to have maximum eight days of paid care leave per year. Any care-leave exceeding the statutory protection may result in no-pay leave, and its maximum length is six times of your weekly work time.
Q6. I was planning to have my vacation but I would like to cancel it. Is it possible?
Answer: Unless the company does you a favour or it is stated in their internal policy, the employer has no obligation to approve your request of cancellation of the planned annual leave.
Q7. I left the Netherlands to somewhere else for a “workation”. Am I entitled to my pay?
Answer: Any unilateral contract modification by the employees on areas such as workplace and worktime is not allowed. The employee may not be entitled to his/her salary in this case. Please make sure that you get the approval from your employer before you decide to work remotely.
Q8. Can the company check my health conditions even though I am not on sick leave?
Answer: No. This is personal privacy and shall not be deprived by employers for any reason. If an employer is concerned, he/she should grant the employee sick leave. Only the corporate’s medical practitioner can examine the employees, whilst the patient’s substantive health information must be kept confidential.
Q9. Am I entitled to my salary if I have zero-hour (in Dutch: oproep) contract and have no work currently due to economic reasons?
Answer: Yes, but only if you have been working for more than three months. Your salary amount will be determined by the average work hours you have performed in the last three months according to Article 7:610b of the Dutch Civil Code. For instance, if you have worked 90 hours in December, 110 in January and 105 in February, then you shall be entitled to get the salary of 102 hours per month from March.
Q10. What are the criteria of applying for unemployment benefits (Dutch: WW-uitkering)?
Answer: There are four main conditions:
- you have worked at least 26 weeks in the past 36 weeks; and,
- the unemployment must not be caused by the employee himself (i.e. resignation or dismissal due to serious fault committed by the employee); and,
- The working hours of the job before getting the unemployment must be more than five hours per week; and,
- the employee must be available as a labour force when he/she is receiving the unemployment benefit.
Note: Full-time students are not regarded as available labour force.
Q11. What is a settlement agreement (in Dutch: vaststellingsovereenkomst)?
Answer: This is a contract of mutual consent from both the employer and employee, to agree upon the conditions of the employment contract termination, such as the reason for termination, date of effect, compensation, non-compete clause etc.. By recalling the settlement agreement, employees have 14 days unconditional cooling-off period after signing it, or 21 days if the employer did not inform the employee about the cooling-off period.
A properly drafted settlement agreement may grant the employee unemployment benefits. Therefore, Amice Advocaten strongly recommends you to seek for lawyers’ assistance if you are planning to quit with mutual consent.
Q12. How long am I eligible for the unemployment benefits? And how much?
Answer: You are eligible to have minimum three months of unemployment benefits. The amount of the first two months will be 75% of your previous tax-deductible income respectively; whilst it will be 70% starting the third month and so on. Based on how long have you worked before the unemployment, you are eligible to obtain the benefits up to 24 months.
Q13. Are European blue card holders and highly-skilled labour entitled to unemployment benefits?
Answer: Yes. However, please be aware that the Dutch Immigration Department (IND) may revoke your residence permit if you are unemployed for more than three months.
Q14. Can I regret and recall my resignation?
Answer: The employer is obliged to discuss with the employee whether he/she means to resign. Under special circumstances the employee may be able to recall his/her resignation. If you are not certain with your situation, please contact Amice Advocaten. We can assess your situation and may be able to help you negotiate with your employer.
Q15. Can I get unemployment benefits if I resign?
Answer: In principle, you cannot.
Q16. Can I get unemployment benefits if my fixed contract expires and my employer declines to renew the contract?
Answer: It is possible. It depends on whether you fit in the criteria of the acquirement of the benefits as stated in Q10, for example, that you have worked at least 26 weeks in the past 36 weeks.
Q17. Are there any obligations during my unemployment benefit claim?
Answer: You are obliged to look for jobs proactively during the unemployment period and to report to the UWV regularly. You are also obliged to accept the advice and job offers by the UWV.
Q18. As a highly-skilled labour or EU blue card holder, can I stay in the Netherlands if I am unemployed for more than three months?
Answer: According to the Dutch immigration law, European blue card holders and highly skilled labour (kennismigrant) are granted three months to look for another job if they are dismissed prematurely before the expiry of their residence permits. The Dutch Immigration Department (IND) may revoke the residence permit if one is unemployed for more than three months. However, the expat may still object the IND’s decision and resort to administrative review and/or appeal. If you have questions about that, Amice Advocaten can assist you to prolong your legal stay in the Netherlands during the objection and/or appeal procedures.
Q19. What if I lose my job in the course of the application for the permanent residence?
Answer: You are obliged to inform the IND about your status. It may affect the outcome of your application based on case-by-case analysis. Amice Advocaten can review your case and look for a remedy to prevent the failure of your application.
Q20. My company goes bankrupt. Who should pay me?
Answer: According to Article 40 of the Dutch Bankruptcy Act, the appointed liquidator (curator) has the right to dissolve the employment relationship between the corporate and its employees. The informing period is six weeks maximum and the salaries shall be paid by the UWV. Employees are also entitled to unemployment benefits after the informing period.
If you have any questions about immediate dismissal after reading this blog, please feel free to contact our office via telephone number 030 230 0230 or e-mail at: info@amice-advocaten.nl
[1] ECLI:NL:HR:2008:BD1847