Employees who become unable to work
Employees who are unable to work because of health reasons receive proper protection in the Netherlands. It is difficult to terminate an employment relationship with a sick employee during their first two years of incapacitation. Sick employees are entitled to continue receiving their salary. Employers can take out insurance to cover the costs associated with this, in case one of their employees falls ill. While the employee is incapacitated, both parties are subject to certain obligations regarding the employee’s reintegration into the workplace. Contact us if you have any questions about employees who are unable to work, such as the prohibition on termination of employment, continued payment of wages, insurance, reintegration and social security.
An employment contract must be drawn up for all employees, including new employees joining the company. The contract sets out all the terms of the employment relationship, for both the employer and the employee. In addition to a job description, its duration and the wages payable, the employment contract may also include a non-competition clause, a nondisclosure agreement, specify where the work needs to be carried out, and state whether the employer can amend the employment contract unilaterally. Citius Advocaten can provide advice on these types of questions. We can also advise you on employing staff from overseas (expats) or special terms for directors.
Terms of employment
As an employer, how do you draw up the terms of employment? And if you are an employee, how should you approach negotiations regarding the terms of employment? There are many options to consider: permanent or flexible employment contracts, bonus plans, contractual severance packages and so on. What differentiates directors, consultants or expats from ‘regular’ employees, for example? Citius Advocaten can also advise you on employment-related commercial contracts, such as service-provision agreements and management agreements.
Employees who reach an agreement with their employer that terminates their employment (or ‘settlement agreement’) are entitled to a statutory cooling-off period. The cooling-off period is 14 days and must be included in the agreement. During the cooling-off period, the employee can decide to reject the terms of the settlement agreement. The employee does not need to give a reason for this. If the employee changes his or her mind during the statutory 14-day cooling-off period, the employment contract remains applicable and the employee is still employed.
The basic principle is that management board members are not personally liable for any debts or other liabilities pertaining to the relevant legal entity. There are, however, certain situations in which a director can be held personally liable for the debts of a (bankrupt) legal entity. This applies in the case of culpable actions or mismanagement, which can include inadequate business administration, profiting unlawfully and/or placing the company in debt when the board member knows that those debts cannot be repaid. Citius Advocaten can provide advice regarding directors’ liability.
Non-competition clauses and non-solicitation clauses
A non-competition clause prohibits an employee from working for a competitor after the employment relationship has come to an end. A non-solicitation clause prohibits an employee from approaching business contacts, such as clients (or potential clients) of the employer. If an employee would be disproportionately disadvantaged by one of these clauses, the subdistrict court may be asked to amend or even to annul the relevant clause. Citius Advocaten can provide advice regarding non-competition and non-solicitation clauses.
In any workplace, disputes can arise between an employee and the employer, or between employees themselves. These can relate to the nature of the work, a demotion, a bonus that has not been paid or a personality clash. It is important to take the right steps in order to settle such disputes. Citius Advocaten can support both employees and employers in these situations.
Collective labour law
In addition to the employment contract between the employer and an individual employee, a collective agreement may also play an important role, such as a collective labour agreement (or ‘CAO’) or a terms of employment package. In major reorganisations, the Collective Redundancy Notification Act (WMCO) and social plan can often play a role, too. We can help you to draw up and/or explain the rules that are important in reorganisations and advise you on their consequences for the employment relationship.
Tax classification for self-employed persons
Clients, contractors and self-employed workers often want to make sure that their relationship is not classified as an employment relationship (which would require an employment contract), so that no income tax or insurance premiums are deducted from the payments made. Until 1 May 2016, the Declaration of Employment Relationship (VAR) provided this assurance. But on that date, the VAR was replaced by the Employment Relationship Assessment (DBA), and this new situation has led to many uncertainties. We can provide advice to both contractors and to self-employed persons regarding the risks of your relationship being classified as an employment relationship, and what you can do to mitigate those risks.
Cross-border employment law
Increasingly, employers and/or employees may not be located in the Netherlands, or the work they do is carried out (fully or partly) outside of the Netherlands. In such situations, the question is which country’s law applies to the employment relationship and what implications this has on the rules around redundancy. Citius Advocaten can advise both employees and employers on cross-border issues.
A whistle-blower is someone who exposes wrongdoing within a company. But to what extent are whistle-blowers entitled to protection from dismissal, for instance? Citius Advocaten can help employers to draw up rules within their organisation and advise employees in situations where they may be considered a whistle-blower.
Employee participation refers to employees’ right to have a say in decision-making within a company or organisation. Employees are entitled to take part in discussions regarding certain decisions through a works council, staff representation body or annual meeting. Depending on the number of employees in a company, there may be a legal obligation to establish a works council, and depending on the situation, a group works council or a central works council may also be set up. The Works Councils Act specifies the powers of these bodies. Citius Advocaten will be happy to provide you with advice on all your questions regarding employee participation.
In the event of a dispute in the workplace, it may be sensible to call in a mediator in order to arrive at a solution. Sometimes the employer will be obliged to arrange mediation, such as when a company doctor advises this. The goal of a mediator is not to decide who is right, but to ascertain whether a dispute can be resolved. The mediator is impartial. It is sensible to engage a lawyer for advice and assistance with mediation. Citius Advocaten has experience in supporting parties involved in mediation.
Termination of employment
If an employee does not consent to a termination of permanent employment, the employer must request permission from the UWV to terminate the relevant employment contract or ask the subdistrict court to terminate it. In the event of a reorganisation or the termination of employment due to long-term illness, the employer will need permission from the UWV to do this. In the case of a dismissal for personal reasons that relate to a specific employee, such as unsatisfactory performance or a break-down in the employment relationship, the employer will need to go to the subdistrict court. Under both routes, the employee has the right to present a defence. Citius Advocaten can assist both employers and employees in such proceedings.
Dismissal with immediate effect
In case of dismissal with immediate effect, the employment contract is terminated without any period of notice. This is only possible if there is an urgent reason for doing so, such as theft, fraud, assault, threatening behaviour, drunkenness or refusal to work. The dismissal and the reasons for it must be communicated immediately and set out in a dismissal letter as quickly and clearly as possible. Employees are entitled to initiate legal proceedings up to two months after the dismissal if they wish to contest it. Employers can also ask the subdistrict court to terminate the employment contract in case the dismissal with immediate effect is overturned. Citius Advocaten can support both employers and employees in situations involving dismissal with immediate effect.
There is a large body of law on pensions, which is complex and constantly changing. Pensions, including both the state pension and supplementary pensions, are an important aspect of the terms of employment. It is important for both employers and employees to know exactly what a pension plan entails and how certain circumstances and events may affect it. What happens to a pension if employment is terminated or the employee goes to work for another employer (pension break)? And what if the employee gets divorced or passes away? Citius Advocaten can advise you on all these matters.
Employers will always need to retain certain personal details regarding the employee as part of the employment relationship. Citius Advocaten can advise employers on how best to handle this, such as in the event of a request by the employee to access the information held on him or her. We can also verify whether your organisation is compliant with privacy legislation and help make sure that this is the case. This includes areas such as the data-processing register, the notification obligation regarding data breaches, the processing of special personal data, retention periods, privacy statements, employee protocols and mandatory processor agreements. Citius Advocaten can also advise employees on their privacy rights.
Businesses are constantly dealing with changing internal and external circumstances and this may sometimes necessitate a reorganisation. Citius Advocaten can help companies with this by, for example, drawing up a reorganisation plan, advising on formal consultations with the works council, drawing up a social plan, submitting documents to the UWV and communications with employees. Citius Advocaten can also represent the interests of employees during a reorganisation, such as by presenting an objection to the UWV.
Citius Advocaten can provide advice regarding both employer liability and employee liability. This may relate to damage or injury caused by unsafe situations in the workplace, the working environment, bullying at work, discrimination, theft and/or violent crimes. Citius Advocaten can also advise on the implementation of company policy to prevent damage or injury in the workplace.
Suspending an employee is a drastic measure. The basic legal principle in the Netherlands is that an employee has the right to do his or her work. Suspension is not a step that can be taken arbitrarily, therefore. Examples of situations in which suspension is possible include suspicions of fraud or theft, allegations of sexual harassment and/or a physical fight in the workplace. An ongoing investigation into an employee may also be a reason for a temporary suspension. The collective labour agreement may set out rules with regard to (the duration of) a suspension. During the suspension period, an investigation can be carried out into whether there are grounds for dismissal with immediate effect. It is very important to seek advice at an early stage in the event of a suspension. The wrongful suspension of an employee or – as an employee – the acceptance of a suspension, can have far-reaching consequences. Citius Advocaten can advise both employers and employees regarding suspension.
An employee is usually entitled to a transitional payment if the employer decides not to renew his or her employment contract. This is the case even if there is no procedure involving the district court or the UWV. The amount of this transition payment is determined as follows: every employee builds up the right to a transition payment from their first day of employment; this is one third of the monthly salary for each full year of employment. Employment contracts are regularly terminated using a settlement agreement, and the transition payment is part of that agreement. It is important that employees and employers receive sound advice in this regard. Citius Advocaten specialises in this area.
A claim for re-employment can arise if an employee has been suspended or their status has been changed to inactive. If an employee disagrees with this decision, he or she can request re-employment in court, so that they can resume their normal work as set out in the employment contract. Citius Advocaten can assist both employers and employees with questions regarding suspension or non-active active status, including advice and initiating legal proceedings.
If an employee is injured or becomes ill as a result of carrying out his or her work, the employer is liable if their duty of care has not been fulfilled, unless the employee has acted in a way that was knowingly reckless. There are far-reaching obligations on employers, who must ensure that they provide a safe working environment. But how far does an employer need to go with regard to their duty of care? The boundaries are not always clearly defined. For this reason, it is sensible to seek advice regarding the risk of employer liability. Citius Advocaten can help employers with this. We can also advise employees who have suffered damage during the course of their work.
An employee is only liable for damage caused if he or she has acted deliberately or in a knowingly reckless way. This is what the law says. However, exceptions to the detriment of the employee may be included in the employment contract, provided the employee is insured for this. Even so, a ‘minor error’ due to carelessness, for example, does not normally mean that the employee can be held liable. In assessing whether an employee has acted deliberately or knowingly recklessly, all the circumstances of the case need to be considered. Feel free to contact Citius Advocaten regarding liability issues concerning employees.
If an employee consents to the termination of his or her employment in response to a proposal from the employer, it will often be important to the employee that his or her right to unemployment benefits remain unaffected and that he or she has as much certainty as possible that unemployment benefit will be paid. Citius Advocaten can help employees to assess a settlement agreement to ensure that this is the case.