Unfair Dismissal Claims under Dutch Employment Law

Understand what constitutes an unfair dismissal claim in the Netherlands and how to address it.

What are the intricacies of unfair dismissal claims under Dutch law? Whether you are an employer seeking to understand your legal obligations or an individual navigating a potential dismissal situation, this article provides valuable insights into the legal framework governing dismissals in the Netherlands.

Fair Dismissals under Dutch Employment Law: Grounds and Criteria

Under the Dutch Civil Code (art. 7:669), fair dismissals can occur on specific grounds, such as employee conduct, unsuitability, or economic redundancy. Employers must provide financial data and demonstrate that they genuinely considered alternatives to redundancy when citing economic reasons for termination. Additionally, it should be shown that relocating the employee to another suitable position within 26 weeks, with or without training, is not feasible.

To justify the decision underlying job loss, employers must prove that dismissals are necessary for efficient management. Furthermore, the selection of employees to be dismissed should be based on tenure and age (art. 7:669 lid 1, 2, and 3 sub a, art. 7:681 lid 1 sub d, art. 7:682 lid 4).

In cases of dismissal for personal reasons with an open-ended employment contract, employers can terminate an employee under specific circumstances, including:

1. Unsatisfactory job performance or suitability issues (except in cases of illness).

2. Serious conflicts between the employee and employer.

3. Conscientious objections by the employee to perform their job without alternative suitable work being available.

4. Long-term disability preventing the employee from working.

5. Inappropriate behavior, such as theft or being intoxicated during working hours.

6. If dismissal is due to unsuitability or insufficient performance, the employer can only proceed if reassignment to another suitable position within a reasonable timeframe is not possible, even with the assistance of training (art. 7:669 lid 1 and 3).

Understanding Unfair Dismissals under Dutch Law

Unfair dismissals, as defined by the Dutch Civil Code (art. 7:670), are actions deemed "obviously unreasonable" and are prohibited under the law. These protections exist to safeguard vulnerable employees in specific situations, including:

1. Discrimination: Termination on the basis of factors such as religion, race, age, or disability is strictly prohibited.

2. Illness or Labor Disability: Dismissing an employee during the first two years of illness or labor disability is considered unfair.

3. Pregnancy and Maternity Leave: Employers cannot terminate an employee due to pregnancy or during maternity leave.

4. Parental Leave: Employees have the right to parental leave without facing termination as a consequence.

5. Works Council and Association Members: Dismissing an employee for being a member of a works council, personnel association, or political party is unjust.

6. Trade Union Membership: Termination due to trade union membership is also considered unfair.

7. Legal Recourse for Unfair Dismissals

Individuals who believe they have experienced an unfair dismissal can take steps to protect their rights. Filing a claim with the Dutch labor authorities is the first step in seeking justice. Employers are encouraged to approach such claims diligently, ensuring their actions comply with relevant labor laws.

Proving Unfair Dismissal under Dutch Law

Under Dutch law, establishing an unfair dismissal claim requires presenting substantial evidence. The evidence may include:

1. Employment Records: A comprehensive overview of the employee's employment history, performance appraisals, and any disciplinary actions.

2. Correspondence: Gathering all relevant emails, letters, or communications related to the dismissal.

3. Witness Statements: If possible, obtaining statements from colleagues who can provide insights into the employee's job performance and the circumstances leading to their termination.

4. Medical Records: In cases involving illness or disability, medical documentation is essential to demonstrate the relevance of the dismissal.

5. Discrimination Records: If discrimination is suspected, any evidence supporting this claim should be included.

6. The Importance of Legal Representation

Navigating the complexities of unfair dismissal claims can be overwhelming, and it is crucial to approach these matters impartially and professionally. Engaging an experienced employment lawyer ensures both employers and employees have a clear understanding of their rights and obligations under Dutch labor laws. Seeking expert legal counsel can contribute to a fair and equitable resolution for all parties involved.

Conclusion

In conclusion, understanding what constitutes unfair under Dutch employment law is essential for both employers and employees. At Fennek Advocaten, we believe in fostering a fair and just work environment for all. If you require legal guidance on dismissal matters or need assistance with an unfair dismissal claim, I am here to provide professional support and protect your interests. Remember, upholding the principles of fairness benefits both employers and employees, fostering a harmonious workplace and sustainable business practices.

Disclaimer: This article is provided for informational purposes only and does not constitute legal advice. For specific guidance on your situation, I recommend consulting with a qualified professional.