In our earlier blog, we already explained the conditions for a dismissal on the basis of business economic reasons. In this blog, we elaborate on the extra conditions that must be met for a mass lay-off.
What is a mass lay-off under the Dutch law?
According to the Dutch law, there is a mass lay-off if an employer is forced to fire twenty people or more within a period of three months in the same UWV-work area because of business economic reasons. A few examples of business economic reasons are:
- poor financial situation of the employer;
- structural reduction in work or turnover within the employer’s organization;
- organizational reasons (for example reorganizations); and
- termination of (part of) the activities of the employer.
In case of a mass lay-off, the employer is legally obliged to notify the employees and the Employee Insurance Agency (UWV) in advance. Furthermore, an employer must notify and enter into discussion with the Union(s). Lastly, in terms of reporting obligations, an employer should consult with the Works Council (if existing) to formulate the reorganization plan. If an employer does not adhere to these obligations, an employee could successfully request the subdistrict court to annul the termination or the termination agreement.
In practice, a mass lay-off entails that an employer will draft a social plan together with the Unions and the Works Council, though the employer is not legally obliged to do so. Hereafter, we explain what a Social Plan is and what it could mean for your legal position.
What is a Social Plan and what is its role during a mass lay-off?
To reiterate, the Social Plan is drafted by the employer, the Works Council and the Unions. A Social Plan determines which employees will be part of the mass lay-off. Other matters that are addressed in the Social Plan are, for example: the dismissal protection period, the transition fee, possibilities for an outplacement trajectory, and garden leave.
If the Social Plan is submitted to the Netherlands Labour Authority as a collective labour agreement, then the Social Plan is legally binding between the Unions, the employer and the employees. Parties cannot deviate from the Social Plan, unless special circumstances arise.
What are my rights as an expat-employee during a mass lay-off?
If you have a Dutch labor contract or if the Dutch labor law is applicable to your situation, you are in principle entitled to the following.
First, there is a one-month waiting period (wachttijd) before the employer is allowed to start the notice period (opzeggingstermijn) by providing the notice of dismissal. Therefore, you will at least have two months to find a new job while you maintain your right to salary payment. If you are here as a knowledge migrant (KM-visa holder) or on the basis of an EU Blue Card, you will have two months + the three month search period to find a new job. This is of course on the condition that your visa does not expire on the same date as your labor agreement and that your visa does not expire in less than three months after the termination of your labor agreement.
Secondly, you are (in principle) entitled to the statutory transition fee if you are fired during a mass lay-off. In some cases, an employer will pay you a higher transition fee, but it is unlikely if there is a Social Plan involved.
Thirdly, you may be eligible to follow an outplacement trajectory or (work-related) education at the employer’s expense. These are meant to help you find a new job in the Netherlands. Your eligibility depends on the Social Plan or on the agreement with your employer, however.
Finally, you can submit a rebuttal at the UWV and, after the UWV procedure, instigate a legal procedure at the subdistrict court against the dismissal permit and/or demand a fair compensation (billijke vergoeding). It is important to note that participating in these procedures does not extend your residential rights in the Netherlands.
Conclusion
A mass lay-off does not only have implications for your job status, but also for your legal status as a migrant. To protect your rights, it is of utmost importance that you contact a law firm as soon as possible once you receive the notification of the intended mass lay-off.
If you seek legal counsel regarding this topic, please do not hesitate to contact our office. You can reach us via e-mail at: info@amice-advocaten.nl or telephone: 030 2300 230.