Employment Law Newsflash April 2011

"We are pleased to offer you our April 2011 Employment Law Newsflash. It is a reflection of what we stand for: giving practical advice and maintaining personal contact with our clients and business relations. In this Newsflash we would like to inform you concisely about some topics of current interest. If you would like to know more, please don't hesitate to call one of our lawyers for a brief explanation (tel.: +31 (0)20 344 61 00). Employer liable for employee's burnout

A recent court judgment shows once again that employers have a significant responsibility to ensure that their employees do not become disabled for work due to stress. The case in question involved an employee who suffered from a burnout after a long period of systematically working overtime. The Court of Appeal of Den Bosch, the Netherlands, ruled that the employer was liable; the employer should have ensured that the employee could perform her work in an average of 40 hours a week, in particular because the employer knew that the employee had difficulties with delegating work, was a perfectionist and found it difficult to detach herself from her work. The court found that it was irrelevant that the employee had never complained, took on extra work herself and worked overtime on her own initiative. (Court of Appeal of Den Bosch, 9 November 2010)

May an employee be summarily dismissed due to a prison sentence?
That is permissible only if there are additional circumstances. An employee of ABN Amro Bank was summarily dismissed because he had to serve a prison sentence due to illicit sex with a minor and therefore could not come to work. However, the Dutch Supreme Court ruled that that was an insufficient ground for summary dismissal in and of itself. That would have been different if ABN Amro Bank had also based the summary dismissal on additional circumstances. All the circumstances, taken together, must give rise to an urgent reason for the dismissal, but in this case ABN Amro Bank did not substantiate that adequately in the notice of dismissal. This shows once again how important it is to formulate a notice of dismissal properly. (Dutch Supreme Court, 17 December 2010)

New job; no severance pay
If an employer helps an employee to find another job it is possible to save a considerable amount of severance pay. The position of a 50 year old employee who had worked for the company for 20 years was eliminated as a result of a reorganisation. On the ground of the applicable Social Plan the employee had access to a mobility centre where he could take advantage of outplacement services. After more than a year and a half the employer terminated the employment contract. By that time the employee had found another employer, but he nonetheless claimed severance pay. The employer had offered outplacement support and had invested in training. Moreover, the court found that it was not clear what disadvantage the employee had suffered, since he had already found a new job before the employment contract was terminated. (Court of Appeal of Amsterdam, the Netherlands, 21 December 2010)

Penalty for illegal employees
On the ground of the Dutch Foreign Nationals (Employment) Act (Wet arbeid vreemdelingen) an employer must ensure that all its employees have the documents required to be allowed to work, and it must keep records in that regard. This rule also applies in respect of temporary workers. Moreover, in many cases it will not be possible to recover penalties imposed by the Dutch Health and Safety Inspectorate (Arbeidsinspectie) from the temp agency, as a market garden in the Rotterdam region found out. A total of EUR 40,000 in penalties was imposed on the business because of employees who did not have valid documents. The employees had been supplied by a temp agency. However, the District Court of Rotterdam, the Netherlands, ruled that the market garden could not recover the penalties from the temp agency because the business had failed to comply with its own duty to verify that the workers had the required documents. (District Court of Rotterdam, 5 January 2011)

Unemployment benefits after participating in reality show
A woman who participated in De Gouden Kooi, a reality show on Dutch television, applied for unemployment benefits after she was voted off the programme, but the UWV benefits agency refused her application because she did not have an employment contract. The Dutch Supreme Court recently ruled that the participant had nonetheless worked on the basis of an employment contract and thus she was entitled to unemployment benefits, because all the requirements for an employment contract had been met: personal work (her participation in the programme), a salary (she received EUR 2,250 while she was participating in the programme) and a relationship of authority (she had to follows instructions). (Dutch Supreme Court, 25 March 2011)

Legislative proposal for an expansion of the Collective Redundancy (Notification) Act
A legislative proposal to expand the Dutch Collective Redundancy (Notification) Act (Wet melding collectief ontslag) has been submitted to the Dutch Council of State (Raad van State) for a recommendation. On the ground of the current Collective Redundancy (Notification) Act if an employer wants to dismiss 20 employees or more within a term of three months by means of dismissal proceedings (dissolution or termination) it must notify the relevant trade unions and UWV WERKbedrijf (the work placement branch of the employee insurance agency) of its intention to do so. On the ground of the legislative proposal, in the future it will also be necessary to take into account employees whose employment contracts will be terminated by mutual consent. Currently that form of termination can still be used to avoid the notification requirement. To be continuedâ"

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