9 August 2010

Firing expats is no longer a breeze

By Godelijn Boonman

According to a ruling of the Amsterdam Court of Appeal in 2010, employers cannot fire an expat employee without the consent of the court or the UWV (Uitvoering Werknemersverzekeringen – Employee Insurance Schemes Implementing Body).

Protection from wrongful firing practices

Employers intending to terminate the contract of one of their employees must first seek the consent of either the court ( BBA- Buitengewoon Besluit Arbeidsverhoudingen – extraordinary decision employment) or the UWV. This measure is meant to both  preserve social and economic relationships within the Dutch society as well as protect employees from abusive firing.

Is this protection applicable to expats, as well ?

Employers as well as employees have eagerly awaited the decision following the question, whether the above protocol applies to foreign nationals temporarily employed in The Netherlands, as well. Are social and economic relationships within Dutch society and the Dutch labour market forces relevant in the case of a foreign national who will, most probably, return to his or her country of origin at some point in time ? A negative answer would give permission to employers to fire an expat employee by ways of a ‘normal’ termination letter, only, without any further ado.

Well, there is good news

Present case law indicates several criteria that are relevant and must be taken into consideration, when firing an expat employee, among others:

• The place where the contract of employment was signed
• The law applicable to the contract of employment
• The place where the actual work is carried out
• The employer’s actual place of business
• The currency in which the employee is paid for his or her work
• The employee’s place of residence and family life

Amsterdam Court ruling

In its ruling in 2010, the Court of Appeal in Amsterdam gave the following reasoning, when asked to decide  whether the previous consent by the court or the UWV would be necessary for an expat employee’s employment contract termination: increasing labour force mobility makes the employee’s connection to the Dutch labour market irrelevant; however, employees must still be protected from ‘wrongful firing practices’. In the case brought before the Amsterdam Court, the expat employee’s position  was deemed to be worthy of the same protection a Dutch employee would have had in a similar situation, since he had a Dutch employment contract, was living in The Netherlands, working for a Dutch employer, without evident prospects of immediate employment in his country of origin. The Court ruled that in this case, the effects of the termination of his employment contract upon the dynamics of Dutch labour force market would be irrelevant.

Please contact me in case any of the above have raised your interest or concerns.

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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