Netherlands

The common trend in court rulings is that certain behaviour is not acceptable. This especially applies to certain unwanted touches, such as the ‘hand on the buttock’. An employee must be blamed for such behaviour. In principle, it does not matter if the other employee gave any cause for the approach. This applies all the more so when considering the age difference between the two employees concerned. For certain behavior, the judgment reads, a warning is not necessary because you ‘just do not do that’. However, this behaviour does not directly result in a legitimate summary dismissal. All circumstances of the case need to be taken into account. An employer that accepts certain behaviour from its employees and furthermore promotes a ‘self-styled’ atmosphere designed to be informal, cannot suddenly reverse course and decide to punish morally reprehensible behaviour. Therefore, in creating an atmosphere where the lines of acceptable and unacceptable behaviour are blurred, the employer’s culpability for the misconduct of its employees is shared equally between employer and employee. While there was no doubt as to the employee’s culpability for his actions, the circumstances of the case were nevertheless insufficient to support a legitimate case for a summary dismissal

If an employer does not want to terminate the employment with a long-term sick employee after 104 weeks, the employment is referred to as dormant. The obligation to pay wages has usually ended, but formally, the employee is still employed despite the fact that he does not receive any wages. In this way, the employer avoids having to pay a transition payment to the employee. Keeping the employment ‘dormant’ is not prohibited and in the past an employer was not obliged to agree to a termination request from the employee

The help, support and guidance that can be expected from the employer in a specific case, in order to improve the employee’s performance, as well as the way in which all this must be laid down, depends on the circumstances of the case. The Court added to this that the employee, considering the level of her position and her work experience, could herself have shown insight into her improvement areas and could have made it known, which specific measures or courses she needed in order to improve her performance, and her failure to do so, led to her termination due to inadequate performance

Last year, the Dutch Supreme Court pronounced a large number of rulings in the field of the Work and Security Act (Wet werk en zekerheid). Therefore, a large part of this Chronicle deals with those decisions. The items discussed include rulings on the grounds for dismissal, the transition allowance and the fair compensation, the obligation to pay wages after immediate dismissal and a number of procedural aspects. Furthermore, attention will be paid to case law on #metoo and the rulings of the European Court of Justice on the lapse of holidays. Finally, we will discuss a number of relevant developments in laws and regulations