On 1 July 2015, dismissal law drastically changed. From this date, the BBA [Extraordinary Labour Relations Decree] has lapsed and dismissal law is now entirely regulated in the Dutch Civil Code. With an office situated in the heart of the international community of The Hague, GMW lawyers advise on the consequences of the new dismissal law for expats and international organisations.
This has possible consequences for different international employment relationships, namely:
- The employment contract under foreign law;
- The employment contract under Dutch law with an employee working abroad;
- The employment contract with a cross-border worker.
Below we will outline the consequences of the lapsing of the BBA for each category.
The employment contract under foreign law
If the employment contract is governed by foreign law, this does not always mean that Dutch law has no relevance. This is because the Supreme Court has ruled that articles 6 and 9 BBA (former) are ‘priority rules’. This meant that, irrespective of whether or not Dutch law governed the employment contract, these provisions applied if the issue fell in the coverage of the Netherlands. If this was the case then, in brief, the dismissal protection of the BBA applied if the employee resided and worked in the Netherlands and if it could be anticipated that the employee would rely on the Dutch labour market.
As the BBA has lapsed, a possible consequence of this is that the employee with an employment contract under foreign law no longer enjoys the dismissal protection arising from this. This is only different if these articles, after they have been transferred to the Dutch Civil Code, will also be labelled as priority rules.
The employment contract under Dutch law with an employee working abroad
As the BBA has lapsed and the dismissal protection ensuing from this has been included in the Dutch Civil Code in its entirety, the employee with an employment contract under Dutch law can rely on this as normal. This is the case because any employment contract to which Dutch law applies, is fully governed by the Dutch Civil Code.
Previously, the BBA sometimes did not apply if there had been very weak ties with the Netherlands. This scheme therefore had a more limited scope than the dismissal rules as now included in the Dutch Civil Code.
The employment contract with a cross-border worker
On the basis of European regulations (the Brussels I Regulation) it applies that an employer may only summon an employee before a court in the Member State where this employee resides. This means that the employer who wishes to terminate the employment contract of an employee residing abroad must apply to the court in the country where this employee resides. Under current law, it is no longer possible to circumvent this by applying to the UWV for a dismissal permit if the dismissal is for a person-related reason. After all, the Dutch Civil Code prescribes as mandatory for such a case that the employer must request the sub-district court to terminate the employment contract. He therefore has no longer a free choice between the UWV or the sub-district court.
Click here for the article on grounds for dismissal.
Do you have questions about BBA or would you like to discuss a case? Please contact the section Employment & Pension.