6 June 2011

Does Dutch law protect foreign employees against unjust dismissal?

By Godelijn Boonman

In the Netherlands an employee who has an indefinite contract can not be dismissed without the prior approval of a subdistrict court and / or the so called UWV Werkbedrijf.

An employer must therefore file for dismissal. This is determined in article 6 of The BBA, Extraordinary Labour Relations Decree.

In 1988 our Supreme Court declared that the BBA is supposed to protect the social-economic relationships in the Netherlands, whereby permission to dismiss is necessary to protect against unfair or unjust dismissal. This decision often led to dismissal of foreign employees because these employees were not able to prove their reliance on the Dutch labour market. Employers would often state that the employee would leave the Netherlands after the dismissal.

Protection for foreign employees

In April 2010 one of our Courts of Appeal determined that the purpose of protecting the Dutch employment market should be put into perspective. The Court of Appeal stated that the European Union and the free movement of persons made this necessary. This court was of the opinion that the BBA’s purpose was to protect employees from unjust dismissal. Having said that, the American employee who had moved to Holland 5 years earlier and who did not have a concrete indication that he would be transferred abroad in the future should be protected by the BBA. This employee was no different than any other Dutch employee who can always invoke the protection of the BBA. The court went on to say that its opinion would not change if the America employee was intending to go back to America after the termination of his contract. The employer had argued that this intention should be taken in to account.

On October 28 2010 a lower court followed this court of appeal. This court went even further and stated that it was outdated to speak of the protection of the Dutch Labour market. He also referred to the European Union and the free movement of persons. The sole purpose of the BBA should be to protect employees against unfair dismissal. The employee in this case had been working for a Dutch company for 15 years, Dutch law applied and he was a European citizen. It would be in violation of the non-discrimination principle if he would not receive this protection.

Our Supreme Court has not yet given a new opinion and until it does, foreign employees will be dependent on the decisions like the above to fight their dismissal. Of course, the more the employee is integrated in Holland, the more chance he stands to win.

Courts take the following into account:

– does Dutch law apply?
– does the employee live in the Netherlands?
– does his/her family live here?
– is the employer Dutch?
– is the employer paid in dollars or euros?
– the length of the employment agreement.

Dismissed without permission?

Should you be confronted with a dismissal whereby your employer has not received the prior permission of a subdistrict court or UWV Werkbedrijf, seek legal advice. We will be happy to advise you.

Godelijn Boonman

Godelijn Boonman

Lawyer / partner

Godelijn Boonman has focused entirely on employment law for over 20 years, with international employment law playing an increasingly important role in her practice.

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