Work and Social Security Act from A to Z

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1 Work and Social Security Act from A to Z

2 Introduction As you may have read in our previous newsletters, the Dutch Work and Social Security Act (Wet werk en zekerheid, the Act ) substantially changes the rules on flexible employment, dismissal and the Dutch Unemployment Insurance Act ( WW ). The first phase, which relates to flexible employment, took effect on 1 January The phase relating to dismissals will come into force on 1 July This brochure discusses, in more detail, the changes pertaining to flexible employment and dismissal and includes, where possible, practical tips. 2

3 Table of contents 1 Changes relating to flexible employment Probationary period Non-compete clause Notification obligation Agency clause Obligation to continue paying salary Main rule reversed: no work, no pay The succession of temporary employment contracts rule The Ragetlie rule 10 2 Changes relating to the law of dismissal Dismissal through the Employee Insurance Agency or Subdistrict Court Proceedings before the Employee Insurance Agency Proceedings before the Subdistrict Court Appeal and appeal in cassation Termination by mutual consent or by consent Prohibitions on dismissal Application procedures instead of writs of summons Training obligation Transitional payment No transitional payment owed Temporary exception for employees aged 50 and above Temporary exception for small employers Payment in instalments Deduction of transitional and employability costs Transitional scheme to prevent double payment Measures to avoid problems due to the transitional payment taking immediate effect 27 3

4 1 Changes relating to flexible employment 1.1 Probationary period If the employment contract lasts for six months or less, a probationary period can no longer be included. Effective date The new rules apply to all employment contracts signed on or after 1 January Existing derogations in a collective labour agreement ( CLA ) will remain in force (for employment contracts signed after 1 January 2015, too) until the CLA ends, but only until 1 July 2016 at the latest.. TIP If you want to include a probationary period in the employment contract after 1 January 2015, you will have to offer an employment contract of at least six months and one day. It will probably become common in practice to enter into an employment contract for seven months. Instead of including a probationary period, an employment contract for a two-month period could be offered. The drawback in doing this, however, is that the succession of three contracts (see section 1.7) will be reached more quickly. 1.2 Non-compete clause Non-compete clauses may no longer be included in a temporary employment contract, unless the employer indicates in writing, giving reasons, that the clause is required for compelling commercial or operational interests. If no written reasons are given, the clause will be void. If reasons are included, but the employee believes that these reasons do not sufficiently support the need for the non-compete clause, the employee may ask the court to nullify the clause in whole or in part. Effective date The new rules apply to all temporary employment contracts signed on or after 1 January Non compete clauses in employment contracts signed before 1 January 2015 will remain valid. Elimination of the term liable for compensation Under the old rules, an employer could not invoke the non-compete clause if it was liable for compensation. The employer was liable for compensation if, for example, the employee was wrongfully summarily dismissed or if the employment contract was terminated irregularly (that is, the employer did not observe the proper notice period or gave notice effective the wrong date). The term liable for compensation will be eliminated as of 1 July 2015, and the employer will no longer be able to invoke the clause if it committed a seriously culpable act or omission in dismissing the employee. The parliamentary debate on the Act indicates that a seriously culpable act or omission by the employer must be taken to mean very serious cases, such as discrimination, sexual harassment or adducing false grounds for the dismissal. This seems to suggest that an irregular termination will no longer serve to eliminate the non compete clause. Whether this really is so will only become apparent from case law. 4

5 TIP If you wish to include a non-compete clause in a temporary employment contract after 1 January 2015, you will have to specifically check, for each position, whether the clause is truly necessary and whether you can sufficiently support this. Your reasoning will have to specifically focus on the position. In particular, you will have to explain in as much detail as possible why this specific employee, given his or her position, might harm the company if he or she went to work for a competitor. Consequently, the reasoning for, say, a management board position will be different than for a marketing position. A general, standard set of reasons will probably not suffice. If, as part of his or her job, the employee works with specific, competitionsensitive business information, the employer is highly likely to have an important commercial or operational interest in including a non-compete clause. Whether this really is so will only become apparent from case law. The reasons for the non-compete clause must be included in the clause itself, under the clause or in a separate document which is drawn up and signed at the same time as the clause. In addition, for a noncompete clause to be valid, the clause must be in writing (hence, signed by both parties) and must have been entered into with an employee of majority age. NOTE The need for the clause in the temporary employment contract because of compelling commercial or operational interests must exist both when the clause is entered into and when the employer invokes it. It therefore makes sense to determine whether the need for the non-compete clause because of compelling commercial or operational interests still exists when a temporary contract is extended and, if necessary, to change the reasoning. 1.3 Notification obligation The Act introduces a notification obligation for temporary employment contracts of six months or more. This notification obligation means that, no later than one month before the employment contract expires, the employer must notify the employee in writing whether or not the employment contract will be extended and, if so, under what terms. If the employer does not notify the employee at all, it will owe the employee compensation of one month s salary (not including emoluments). If the employer fails to notify the employee about the termination or extension on time, it will owe the employee compensation pro rata. If the employer does not fulfil its notification obligation, the employee may, up to three months after the obligation arises, demand compensation. Exceptions The notification obligation does not apply to employment contracts that do not end on a specific calendar date (project, replacement because of illness) or agency contracts that include an agency clause. Effective date The new rules apply to all employment contracts which end on or after 1 February

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7 NOTE The employer must not only give notice on time if it does not wish to continue the employment contract, but also if it does wish to continue the contract. Apparently, it is permissible to indicate in the employment contract itself, immediately when the contract is entered into, that the contract will not be extended. Nevertheless, we advise giving the notification too. 1.4 Agency clause Briefly stated, with an agency clause, the agency contract ends by operation of law if the hirer no longer wishes to avail itself of the services of the agency worker. Under the old rules, the employment agency could invoke the agency clause during the first 26 weeks of the agency contract under which work was performed. The 26-week period could also be derogated from without limitation in CLAs. Under the new rules, the derogation option in CLAs is limited to a maximum of 78 weeks. Effective date The new rules apply to employment contracts entered into on or after 1 January Existing derogations in CLAs will remain in force (for employment contracts entered into after 1 January 2015, too) until the CLA ends, but only until 1 July 2016 at the latest. 1.5 Obligation to continue paying salary Under the old rules, the assumption was that the employer did not owe any salary if the employee did not perform the stipulated work due to a cause for which the employee bears the risk. In a nutshell, no work, no pay. In practice, we often call this an on-call, zero-hours or min-max contract. The agreement no work, no pay could only be made for the first 26 weeks of the employment contract. This period, though, could be extended without limitation in a CLA. Under the new rules, where a CLA applies, this 26-week period may only be extended for positions which involve occasional rather than permanent work. For example, this is the case with seasonal labour or replacement due to illness. Exceptions These new rules do not apply to agency contracts. The Act provides that, for agency workers, the 26 week period may be extended to, at most, 78 weeks in a CLA. Prohibition on zero-hour contracts At the request of the Labour Foundation, the Minister of Social Affairs and Employment can decide that certain sectors may not derogate in CLAs from the obligation to continue paying salary. This means, in fact, that zero-hours, on-call, and min-max contracts will be prohibited. Effective date The new rules apply to employment contracts entered into on or after 1 January Existing derogations in CLAs will remain in force (for employment contracts entered into after 1 January 2015, too) until the CLA ends, but only until 1 July 2016 at the latest. 7

8 1.6 Main rule reversed: no work, no pay The main rule no work, no pay will no longer apply. The new starting point is that the employer must pay the salary if the employee does not work, unless the employer demonstrates that the employee should reasonably bear the risk of not working. In other words: no work, but still pay. Accordingly, the burden of proof has been reversed, meaning that the employer must now prove that the employee bears the risk for the non-performance of the work. If the employer cannot do this, it must continue paying the salary. Situations for which the employee bears the risk include participating in strikes, coming to work late or serving a prison sentence. While the Act was being debated, the government indicated, too, that an employee who has rightly been suspended will not be entitled to salary. This is remarkable, because the Dutch Supreme Court had previously ruled that suspension is in fact a cause attributable to the employer. It is yet to be seen how case law will decide this question. Unemployment Insurance Act Emergency Scheme The new Unemployment Insurance Act Emergency Scheme will provide that the obligation to continue paying salary will cease to apply if exceptional circumstances arise, such as a lengthy period of frost or other non-economic conditions which do not fall under normal business risks. If the employer does not have to pay salary because of such emergencies, the employee can claim unemployment benefits. Effective date The target effective date for these rules and the Unemployment Insurance Act Emergency Scheme is 1 April The succession of temporary employment contracts rule The succession of temporary employment contracts rule limits the possibility of concluding successive temporary employment contracts. If there have been more than three successive temporary contracts without there being more than three months between these contracts, or if these contracts have exceeded the three-year period, the final contract will be converted into a contract for an indefinite period. The Act reduces the maximum period for successive temporary employment contracts from three to two years. The interval within which contracts are considered successive has been increased from three to six months as well. The maximum number of contracts that may be concluded within this period is still three. Derogations in CLAs or public-law schemes Under the old law, CLAs or public-law schemes could in principle derogate from the succession of temporary employment contracts rule to the employee s detriment without limitation. The Act limits this. Only in the case of an agency contract, or if the intrinsic nature of the business operations so requires, may the maximum period for successive temporary employment contracts be extended from two to four years and the maximum number of temporary contracts increased from three to six. Director With respect to directors of legal entities, the two-year period (after which a permanent contract arises) may be derogated from by written agreement or in public-law schemes. The maximum number of employment contracts may not be derogated from with respect to the director. Thus, three temporary contracts, each lasting four years, may for instance be agreed. 8

9 Exceptions to the rule The succession of temporary employment contracts rule does not apply if: a) the parties have concluded an employment contract in connection with vocational learning. Vocational learning is senior secondary vocational education in which the practical component makes up 60% or more of the study programme; b) in a CLA or public-law scheme the rule has been declared to be inapplicable in whole or in part to employment contracts entered into mainly for the employee s education, provided this is necessary to complete the programme. Examples include doctorates; c) in a CLA or public-law scheme the rule is declared to be inapplicable to certain jobs in an industry. This is only possible if the Minister of Social Affairs and Employment has designated these jobs in a ministerial regulation and, briefly stated, it is common for only temporary contracts to be used for those jobs in this industry. This exception is intended, for example, for professional football players; d) the employee is younger than 18 and works at most 12 hours a week. In such cases, the succession of temporary employment contracts rule will start to apply the day that the employee turns 18; and e) a temporary employment contract is entered into for 24 months or more, and this contract is extended one more time by at most three months. In such cases, the employment contract will not be converted by operation of law into a contract for an indefinite period. This exception is intended to deal with situations in which projects take longer than anticipated. Successive employers The succession of temporary employment contracts rule also applies to successive employers. There are successive employers if an employee gets another employer, but continues to perform the same (or nearly the same) work with the new employer. The different employer may then reasonably be viewed as the other s successor. If the employee starts working for a new employer entirely on his or her own initiative then there are no successive employers. Unlike under the old scheme, there no longer have to be close ties between the old and new employer. Effective date and transitional provisions The new rule applies to employment contracts entered into on or after 1 July Employment contracts entered into before 1 July 2015 will be included in calculating the effect of the new succession of temporary employment contracts rule if a new employment contract is entered into on or after 1 July 2015 and if the interval between the old and the new contract is not more than six months. If two temporary employment contracts were already entered into before 1 July 2015, then the succession of temporary employment contracts rule will not apply to them if they are separated by an interval of more than three months. If a temporary employment contract has not yet exceeded the two-year period on 1 July 2015, but this will happen during the term of the contract, then the old rules will still apply to the contract (the contract will simply end by operation of law in that case). Existing derogations in CLAs will remain in force (for employment contracts entered into after 1 January 2015, too) until the CLA ends, but only until 1 July 2016 at the latest. 9

10 NOTE Employment contracts which were entered into (signed) before 1 July 2015, but which do not actually take effect until after 1 July 2015, will fall under the old rule. TIP There are various options for dealing creatively with the succession of temporary employment contracts rule. One option which makes the most of the latitude afforded by the law is the rule. With this option, the initial employment contract is concluded for a seven-month period and the next two employment contracts for an eight-month period. The employee is employed for a total of one year and eleven months then. Not only does the employer not owe the transitional payment in this case, but a probationary period can be included in the initial employment contract as well. 1.8 The Ragetlie rule Under the old Ragetlie rule, a temporary employment contract did not end by operation of law if, following an interval of no more than three months, it succeeded a permanent employment contract which ended other than by a legally valid termination or a court s setting it aside. If the permanent employment contract therefore ended, for example, by mutual consent or was terminated by the employee, the temporary contract which is continued will not end by operation of law after the agreed period expires; rather, permission will have to be obtained from the Employee Insurance Agency or the Subdistrict Court will have to set aside the employment contract. The Act extends the three-month interval to six months. Exceptions A provision has been added to the Ragetlie rule to make it inapplicable if the previous employment contract entered into for an indefinite period ended (i) on account of the employee s having reached the state pension age pursuant to a retirement dismissal clause (in a CLA or not) or (ii) through termination given by a trustee in bankruptcy proceedings or an administrator in a debt restructuring situation. Effective date These rules will take effect on 1 July Changes relating to the law of dismissal The new rules regarding the law of dismissal will take effect on 1 July The old law will still apply to terminations initiated before that date. This means that dismissal applications filed with the Employee Insurance Agency before 1 July 2015 for which permission is granted by the Employee Insurance Agency before or after that date will continue to fall under the old law. Likewise, terminations by the employer (after it has received permission) to which the old law still applies will continue to fall under the old law. Of course, the procedures relating to such terminations will still be governed by the old 10

11 law. Finally, any legal proceedings, for example, termination proceedings or actions to recover back wages, which were commenced before 1 July 2015 will remain subject to the old law. 2.1 Dismissal through the Employee Insurance Agency or Subdistrict Court After the Act comes into force, employers will no longer be able to choose between the Employee Insurance Agency and Subdistrict Court; instead, the reason for the dismissal will determine where the employer must turn. Plus, various changes will occur with respect to the actions that an employee can take to fight his or her dismissal. Manifestly unreasonable dismissal proceedings, for instance, will become a thing of the past, and, after dismissal, an employee will be able to ask the court to grant him or her fair payment, say, if the dismissal resulted from a seriously culpable act or omission by the employer. Finally, termination decisions by the Subdistrict Court may be appealed from now on, something which is currently only possible in a very limited number of cases. We will explain these changes in more detail below. Reasonable ground and reassignment The new general rule is that an employment contract may only be terminated if the employer can show that there is a reasonable ground for doing so. The Act includes a complete list of the reasonable grounds which can give cause for dismissal. Depending on the reason the employer puts forward, the employment contract may be terminated (after permission has been obtained from the Employee Insurance Agency) or the Subdistrict Court may set aside the contract. In principle, the Employee Insurance Agency is the designated body for handling dismissals based on commercial reasons or long-term incapacity for work. The Subdistrict Court, on the other hand, handles dismissals based on personal reasons (such as unsatisfactory performance or a damaged working relationship). Besides needing to have a reasonable ground, the employer must also show that reassigning the employee, with or without training, to a suitable other position within the company or corporate group is not possible or logical within a reasonable period of time. Another position is suitable if it is consistent with the employee s education, experience and skills or if the employee could become qualified for the position within a reasonable period with the help of training. Assessing whether a suitable position is available involves looking at vacancies that currently exist or that might arise within a reasonable period at the company. This reasonable period is the same as the statutory notice period for termination, that is, one to four months, depending on the length of employment. Moreover, the amount of time that the proceedings before the Employee Insurance Agency or court take must be added. In other words, if the statutory notice period is, for example, three months and the proceedings before the Employee Insurance Agency have taken one month, the reasonable period will be four months. The obligation to reassign the employee will be extinguished if there has been a culpable act or omission by the employee. The obligation will be extinguished, too, if the employee is being dismissed because of a damaged working relationship. This will only be different if the damaged working relationship pertains to problems on the shop floor and not with the employer itself. Finally, the employment contract may not, in principle, be terminated if one of the prohibitions on dismissal applies, such as the prohibition on dismissing sick or pregnant employees (see section 2.3). Exceptions to prior review by the Employee Insurance Agency or Subdistrict Court Permission from the Employee Insurance Agency to terminate the employment contract or termination of the contract by the Subdistrict Court is not required in the following instances: dismissals with the employee s written consent; dismissals by mutual consent through a termination agreement; dismissals during the probationary period; summary dismissals; 11

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13 expiry of the period for a temporary employment contract; dismissals of persons performing domestic work; dismissals of clergy; dismissals of teaching staff in privately-run educational institutions, provided that the reason for terminating the employment contract is to do with an act or omission by the employee that is incompatible with the educational establishment s identity ensuing from its religious or philosophical foundation and permission for the termination was granted by an impartial committee which was independent of the employer; dismissals relating to reaching the retirement or state pension age; dismissals by the trustee in bankruptcy of the employer or if the employer is subject to the debt restructuring scheme for natural persons; and dismissals of directors of legal entities (except for directors of foundations) Proceedings before the Employee Insurance Agency As mentioned, an employer must request permission from the Employee Insurance Agency to terminate the employment contract in the case of dismissals based on commercial reasons or long-term incapacity for work. The Employee Insurance Agency may also be replaced by a Redundancy Committee created by CLA, as long as the dismissal is for commercial reasons. Commercial reasons include a poor financial position, reduction of work, organisational changes or reorganisations, technological changes, cessation of some or all of the commercial activities, relocation of the company and the elimination of a wage cost subsidy. In these situations, the employer must show that jobs will have to be structurally eliminated (that is, with reference to a future 26-week period). Termination of flexible contracts In the case of a dismissal for commercial reasons, permission for termination will only be granted if all the flexible contracts (temporary contracts, temp agency contracts and on-call contracts) have been terminated first. This rule does not apply to flexible contracts where the work is temporary in nature, that is, it lasts less than 26 weeks and cannot be made structural. Nor does this rule come into play if the remaining term of the flex contract is more than 26 weeks and the employee in question is not eligible for dismissal under the proportionality principle (see below). Finally, this rule will not apply, either, if the dismissal concerns a payroll employee with a permanent or temporary contract with a remaining term exceeding 26 weeks and the agreement with the payroll employee must not be terminated under the proportionality principle. Proportionality principle under the Act The order of dismissals for commercial reasons is determined by the proportionality principle. This principle means that, for each age group within a group of interchangeable employee jobs at the business establishment, employees with the shortest period of service are considered for dismissal first. Interchangeable jobs are jobs within the same establishment which are similar to each other in terms of aspects such as content, knowledge, level and salary. Certain exceptions apply to the proportionality principle. For example, employees who have reached the state pension age are eligible for dismissal first, and the proportionality principle does not have to be applied if a unique position (a position held by just one employee) is eliminated or a category of interchangeable jobs is eliminated entirely. Specific groups of employees are not subject to the proportionality principle, either, namely: 13

14 employees who are seconded to a third party and cannot reasonably be replaced; employees who have such knowledge or skills that their dismissal would be too onerous on the company s operations; employees with occupational impairments; or employees eligible for dismissal because a wage cost subsidy has been eliminated. 10%-rule If the CLA or public-law rules allow this, an employer may exclude from the application of the proportionality principle, at most, 10% talented employees from the total number of employees eligible for dismissal. The 10% rule may only be invoked if the employer can demonstrate that the employees in question are performing better than average or have betterthan-average potential for the future. The employer will however have to show, too, that other employees had the same opportunities as the employees kept from the proportionality principle. This means that the employer must not only justify the choice it makes, but also the policy generally followed by it regarding employee training. Likewise, the employer must pursue an HR policy that includes the periodic assessment and identification of employees with a lot of potential for the future. Finally, it has to be clear to employees beforehand that their performance may constitute part of the assessment as to who is eligible for dismissal. This 10% derogation from the proportionality principle applies to a limited extent to the age category and the age category 55 and above. If the 10% rule is applied, employees in these categories may not be subject to more dismissals than would be the case if the principle were applied in full. Further derogations in CLAs or public-law schemes The proportionality principle may be also be derogated from in a more far-reaching manner by CLAs or public-law schemes, provided an independent Redundancy Committee has been set up by the CLA. This Committee will then review the proposed dismissals instead of the Employee Insurance Agency. Such a derogation from the proportionately principle may not violate other laws or regulations, including the laws on equal treatment. Procedure The basic premise is that the dismissal procedure at the Employee Insurance Agency must be completed within four weeks. The due care to be exercised may, however, mean that the Agency needs more time to decide. The time taken for the procedure at the Agency may be subtracted from the notice period, as long as at least one month of the notice period remains. The permission granted by the Agency will be valid for four weeks. Employer s appeal option If the Employee Insurance Agency or a Redundancy Committee does not grant permission for dismissal, the employer may still ask the Subdistrict Court to set aside the employment contract. Thus, the employer in effect has the option of appealing the Employee Insurance Agency s or a Redundancy Committee s decision. The Subdistrict Court s decision may in turn be appealed (see section 2.1.3). Potential actions by the employee with respect to termination The actions which an employee may take in response to having his employment contract terminated are described below. The court s decision may be appealed (see section 2.1.3). 14

15 (a) Compensation for irregular termination If the notice period which the employer observes is too short, the employee may ask the court to grant him or her compensation equal to the salary for the notice period. The Subdistrict Court may reduce this compensation, but not to less than three months salary. (b) Nullification or fair payment The employee may ask the Subdistrict Court to nullify the termination or instead to grant him or her fair payment if: the employment contract was terminated without the Employee Insurance Agency s permission, and no exception was applicable (for example, because the employer thought that it could lawfully summarily dismiss the employee); the employment contract was terminated with the Employee Insurance Agency s permission, but the termination was contrary to a prohibition on dismissals and the exceptions to these prohibitions do not apply. the employment contract was terminated contrary to a prohibition on discrimination. the employment contract was terminated with the Employee Insurance Agency s permission, but the position of the employee dismissed for commercial reasons is filled by someone else within 26 weeks, without this position first being offered to the dismissed employee. This is also referred to as the re-entry into service requirement. This requirement does not apply if, in contracting out work, there is a reasonable ground for this and an employer has genuine selfemployed individuals perform the employee s previous work. A reasonable ground for contracting out work (and, hence, dismissing the former employee) exists if the work is contracted out to improve the efficiency of the operations and not solely to replace permanent employees with flexible and less expensive workers. Genuine self-employed individuals include persons who have a Declaration of Independent Contractor Status ( VAR verklaring ) and who are registered with the Chamber of Commerce. If an employer wishes to end the employees employment contracts and to have these same employees, or others, perform the same work based on a contract for services for the sole purpose of avoiding being an employer, there is no reasonable ground for dismissal and the re-entry into service requirement consequently does apply. Nullification has retroactive effect, so the employment contract will be deemed never to have been terminated. (c) Reinstatement or fair payment If the Employee Insurance Agency or a Redundancy Committee under a CLA has granted permission for the termination, but the employee believes that the permission was wrongly granted (say, the order of dismissals was incorrect or the employer gave incorrect information to the Employee Insurance Agency/Redundancy Committee), the employee can ask the Subdistrict Court to reinstate the employment contract. If the employer has committed a seriously culpable act or omission regarding a termination for commercial reasons, where reinstatement of the employment contract is not reasonably possible, the employee can ask the court to award him or her fair payment instead of ordering reinstatement. Reinstatement will not be reasonably possible if, for instance, the employer deliberately provided false information to the Employee Insurance Agency. If there has been a seriously culpable act or omission by the employer which has resulted in the employee s becoming long-term ill, the employee can likewise ask the court to award him or her fair payment instead of ordering reinstatement. Director A director of a legal entity (except for the director of a foundation) may not ask for reinstatement of the employment contract after being dismissed. The director can, however, ask the court for fair payment if there was no reasonable ground for the 15

16 termination, reassignment efforts have not been made or the termination resulted from a seriously culpable act or omission by the employer. Time of reinstatement of employment contract If the court orders the employer to reinstate the employment contract, it will determine the time at which the employment contract will be reinstated. This may be some point in the future or in the past. Unlike with nullification of the termination, the employment contract itself will not be reinstated as a result of the judicial decision. Instead, the court will instruct the employer in the decision to offer the employee a new employment contract under the same terms and conditions as the previous contract. Moreover, the court can order relief for the period between the termination and the time of reinstatement of the employment contract. If the employment contract is reinstated retroactively, the court may, for instance, state that salary will be owed from the reinstatement date and that the unemployment benefits and transitional payment have to be paid back. If the employment contract is reinstated for the future, the court may, for instance, determine that the unemployment benefits must be supplemented by the employer up to the level of the salary that the employee would have received had the employment contract continued. Amount of fair payment There is no standard for calculating the fair payment. The court therefore has complete discretion in deciding what constitutes fair payment. It is conceivable that a type of Subdistrict Court formula will be developed over time. NOTE The fair payment is in addition to any transitional payment owed (see section 2.6). Time period A request for compensation because the notice period was not observed, a request to nullify the termination or to reinstate the employee, or a request for fair payment must be filed with the Subdistrict Court within two months after the employment contract ends. If the re-entry into service requirement is violated, the limitation period will not start running until the date that the employee is aware or could reasonably have been aware of the situation, but in any event no later than eight months after the employment contract was terminated. The proceedings are commenced by filing an application Proceedings before the Subdistrict Court The Act sets out a complete list of the situations in which an employer can apply to the Subdistrict Court. These include: (i) frequent absenteeism due to illness; (ii) unsatisfactory performance; (iii) a culpable act or omission by the employee; (iv) refusal by the employee to perform the stipulated work because of a serious conscientious objection; (v) a damaged working relationship and (vi) such other circumstances that the employer cannot reasonably be required to allow the employment contract to continue. The employer must also turn to the Subdistrict Court if it wishes to terminate an employment contract for a definite period that does not have an early termination option, hence, even if the dismissal is based on commercial reasons or long-term incapacity for work (grounds for which permission must usually be obtained 16

17 from the Employee Insurance Agency). Finally, the Subdistrict Court is also the designated body if the Employee Insurance Agency has denied permission for the termination. NOTE Because the Subdistrict Court s option to grant the employee compensation (besides the transitional payment, to be discussed in more detail below under sections 2.6 et seq.) is much more limited, the Subdistrict Court will presumably be more reluctant to set aside the employment contract if the existence of one or more of the above-mentioned reasonable grounds for dismissal has not sufficiently been established. Compiling a proper file is therefore even more important than ever Termination date With the termination of an employment contract for an indefinite period or an employment contract for a definite period which can be terminated early, the court will provide that the employment contract ends on the date on which the contract would have ended upon termination with due observance of the notice period. The time taken for the proceedings can be subtracted in full from the notice period. One month of the notice period must still remain, though. The proceedings take on average eight weeks. The following example serves as an illustration. If the court pronounces the decision on 10 January, a three-month notice period applies and the Subdistrict Court proceedings have taken three weeks, the end date of 10 April (that is, 10 January plus a three-month notice period) will be shortened to 20 March (that is, minus three weeks), after which the employment contract will be terminated effective 1 April. The Subdistrict Court need not observe the notice period if the termination is due to a seriously culpable act or omission by the employee. If there has been a seriously culpable act or omission by the employer, the Subdistrict Court will not subtract the time taken for the proceedings from the notice period. In the example above, the end date would then be set at 1 May. If there has been a seriously culpable act or omission by the employer, the Subdistrict Court may also award the employee fair payment. In the case of an employment contract for a definite period that cannot be terminated early, the court will set the effective date on which the contract is terminated and may award the employee compensation limited to an amount equal to the salary for the period the contract would have lasted if it had terminated by operation of law. The compensation may be higher if the termination resulted from a seriously culpable act or omission by the employer. If the termination resulted from a seriously culpable act or omission by the employee, the Subdistrict Court may award the employer compensation limited to an amount equal to the salary for the remaining duration of the employment contract. Violation of the re-entry into service requirement If the employment contract is set aside by the court for commercial reasons, which may occur after the Employee Insurance Agency has denied permission for termination or if there is an employment contract for a definite period without an early termination option, and, after the employment contract is terminated, the employer or employment agency has someone else perform the same work within 26 weeks of the date of the termination decision, without this first being offered to the dismissed employee, the employee may ask the court to reinstate the employment contract or award fair payment instead. The court will reinstate the employment contract effective the date on which it was terminated. 17

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19 2.1.3 Appeal and appeal in cassation If the employer or employee disagrees with the court s decision, they can file an appeal or appeal in cassation within three months of the decision. If a decision is appealed, enforcement of the decision in the first instance will not be suspended. Accordingly, a decision by the court in the first instance will always be enforced. In other words, if a request to terminate the employment contract is granted, the employment contract will in fact end and, if the request is denied, the employee will simply remain in service. On appeal or appeal in cassation, the court may rule as follows: If the appellate court rules that (i) a termination request by the employer was wrongly granted or (ii) a request to nullify the termination or to reinstate the employment contract by the employee was wrongly denied, it may order the employer to reinstate the employment contract with retroactive effect or for the future. Moreover, the court can order relief for the period between the dismissal/ termination and the time of reinstatement of the employment contract. If reinstatement of the employment contract is not reasonable, given, say, the amount of time that has lapsed between the termination of the contract and the decision by the appeal court, the court may award the employee fair payment instead of ordering reinstatement. The court may award the fair payment at the employee s request or on its own initiative. In contrast, the court may only order reinstatement of the employment contract if the employee has requested this. If the appellate court rules that (i) the employer s or employee s request to terminate the employment contract was wrongly denied or (ii) the employee s request to nullify the termination or reinstate the employment contract was wrongly granted, it will determine the future date on which the employment contract will end. Retroactive termination is not permissible. The court is also free to award the employee (additional) fair payment. If the appellate court rules on a termination request which was granted and which was filed by the employee, the court can only assess the amount, or the non-award, of the fair payment. The court therefore cannot order the employer to reinstate the employment contract. NOTE The fact that an employee can file an appeal as from 1 July 2015 may well be a factor in negotiations about a severance payment. In exchange for not filing an appeal, the employee might agree to higher compensation. In particular, the right of retraction can only be invoked once in every six month period. 2.2 Termination by mutual consent or by consent The employer can still terminate the employment contract by mutual consent through a termination agreement. The termination agreement must now be entered into in writing, however. Further, the employment contract may also be terminated with the employee s written consent from now on. Reflection period The Act introduces an option for the employee to revoke his consent to the termination or to set aside the termination agreement within two weeks after this consent was put in writing or the termination agreement was signed, without the employee having to state reasons. The employer must provide written notice of this statutory reflection period to the employee. If the employer fails to inform the employee, the reflection period will be extended to three weeks. To prevent 19

20 abuse, the employee can only revoke his or her consent to the termination or termination agreement once in every sixmonth period. Director The director of legal entity (except for an director of a foundation) is not entitled to a reflection period for dissolving the termination agreement. TIP As from 1 July 2015, it would be wise to include a clause in the termination agreement stating that the employee has a two-week reflection period. This will satisfy the statutory duty to inform the employee. NOTE The requirement that the termination agreement must be entered into in writing may affect the start date of any unemployment benefits for the employee. The situation which comes up a lot in practice, in which the parties reach a verbal agreement on the last day of the month but the termination agreement is only drawn up one or more days later, will no longer, in principle, have the desired effect of the notional notice period, applied by the Employee Insurance Agency, starting to run from the time that the parties reached the verbal agreement. In light of the fact that the employee can revoke his or her consent to the termination or can dissolve the termination agreement within two weeks, it is, moreover, advisable for the termination agreement to be signed in the first half of the month. If the employee revokes his or her consent to the termination or dissolves the termination agreement, the option will at any rate still be there for the parties to reach a further agreement in this same month, without this having any consequences with respect to the notional notice period and thus causing the employment to be extended by one month. In particular, the right of retraction can only be invoked once in every six-month period. 2.3 Prohibitions on dismissal The Act also changes the rules concerning prohibitions on dismissal. Several new exceptions to these prohibitions have been introduced, the prohibitions are set out differently in the Act and the exceptions for dismissals based on commercial reasons have been limited. These changes are explained below. Prohibitions on dismissal under the Act The general rule is that the employer may not, in principle, terminate the employment contract if a prohibition on dismissal mentioned in the Act or another law applies. If the employer nonetheless does this, the employee may ask the court to nullify the termination or to award him or her fair payment. The Act includes the following prohibitions on dismissal: a prohibition on dismissal (a) during the first two years of illness; (b) during pregnancy; (c) during compulsory military service; (d) during membership in an employee participation body; (e) during prospective membership or ex-membership in an 20

21 employee participation body; (f) because of trade union activities; (g) because of leave for political activities; (h) because the employee has taken care or parental leave; (i) because of the transfer of an undertaking and (j) because of a refusal to work on Sundays. These prohibitions apply not only to the procedure to obtain dismissal through the Employee Insurance Agency, but also to proceedings to have the Subdistrict Court set aside the employment contract. The during prohibitions, however, do not apply if the employee s contract is terminated (i) with his or her agreement, (ii) during the probationary period, (iii) based on urgent cause, (iv) because the employee has reached the state pension age and (v) in specific, limited situations regarding dismissals for commercial reasons. The because prohibitions are not subject to any exceptions. Retirement dismissal The Act adds an exception to the prohibitions on dismissal, namely, the retirement dismissal. Under this exception, the prohibition will not apply from now on if the employee s contract is terminated because he or she has reached the state pension age. The termination may not, though, also be related to a prohibition on dismissal. Prohibition on dismissal during prospective membership or ex-membership in an employee participation body An employee who has been placed on the list of candidates for an employee participation body (such as the works council or an employee representative body) or who was a member of an employee participation body less than two years ago may now only be dismissed with the Subdistrict Court s prior permission. For this group, too, a during prohibition will apply under the Act. The prohibition will not apply if the entire company shuts down. If there is a reorganisation or partial business shutdown, the prohibition will not apply if the employee worked for at least 26 weeks in the job that is being eliminated. The introduction of a 26-week period prevents a prohibition on dismissal from being circumvented by placing employees, for whom a prohibition applies, into a position which will be eliminated soon anyway. Prohibition on dismissal during membership in an employee participation body Under the new law, it is still the case that, with dismissals for commercial reasons, the prohibition on dismissal during membership in an employee participation body will not apply if the entire company shuts down. What is new is that, with a reorganisation or partial business shutdown, the prohibition will only be inapplicable now if the employee worked at least 26 weeks in the position that is being eliminated. Prohibition on dismissal during pregnancy and maternity leave Under the new rules, with a dismissal for commercial reasons, the prohibition on dismissal during pregnancy and maternity leave (and the period up to six weeks after this ends) can still only be avoided if the entire company shuts down or if part of the company shuts down. If there is a partial business shutdown, however, it will now be the case that the employee who is pregnant or who has given birth must have worked at least 26 weeks in the position that is being eliminated. As is true at present, though, these exceptions will not apply during the pregnancy and maternity leave. Prohibition on dismissal during illness With respect to a dismissal for commercial reasons, the prohibition on dismissal during illness may only be avoided in future if the entire company shuts down and no longer if the part where the sick employee primarily works shuts down. The prohibition on dismissal during illness may nonetheless still be avoided if the employee, briefly stated, does not cooperate in his or her return to work. Furthermore, it will no longer be possible to derogate from this prohibition in a CLA. 21

22 Dismissal despite the existence of a prohibition In addition to the general exceptions to the prohibitions on dismissal described above, the Subdistrict Court may, despite the existence of a prohibition, set aside the employment contract if (i) the termination request is unrelated to the circumstance to which the prohibition pertains or (ii) the circumstances are such that the employment contract should end in the interest of the employee (say, for health reasons). However, these two specific exceptions will only apply with regard to a during prohibition, such as illness, pregnancy or membership in the works council. If a because prohibition is at issue, such as the prohibition on terminating the employment contract because of membership in a trade union, the Subdistrict Court may not, of course, set aside the contract. The specific exceptions do not apply, either, if the employee is dismissed for commercial reasons. Thus, only the general exceptions apply to dismissals for commercial reasons. In other words, if a sick employee is dismissed for commercial reasons, the court may only set aside the employment contract if the entire company shuts down. The first specific exception, by the way, already applied under the old rules and is sometimes referred to as the duty to verify. The second specific exception is new, although it is already being applied by the courts in some situations. 2.4 Application procedures instead of writs of summons Any claims relating to termination of the employment contract must be brought by means of an application. A separate summons procedure, as used, for example, with salary claims today, will disappear. 2.5 Training obligation The Act introduces an obligation for the employer to enable employees to take training courses required for them to perform their responsibilities. It looks as though this training obligation will be an important factor in determining whether an employee may be dismissed. Under the new rules, an employer may not terminate an employment contract if the employee can be reassigned to a different, suitable position, with or without training, within a reasonable period. Nor may an employee whose performance is unsatisfactory be dismissed if it turns out that his or her unsuitability for the position is the result of the employer not complying with the training obligation. Consequently, it will probably be more difficult to dismiss an employee who is performing unsatisfactorily. TIP Make sure that a proper file is compiled and put down any improvement plans or training efforts in writing. 2.6 Transitional payment District courts will no longer apply the Subdistrict Court formula for termination proceedings. Instead, a legal right to severance pay will be introduced, the so-called transitional payment. An employee will be entitled to a transitional payment if, on the employer s initiative, his or her employment contract is set aside, terminated or not extended after two years. The employee will also be entitled to a transitional payment if, after being employed for at least two years, the employee himself or herself, because of a seriously culpable act or omission by the employer, sets aside, terminates or does not renew the employment contract. A seriously culpable act or omission by the employer includes sexual harassment, discrimination or a serious violation of the obligation to help the employee return to work or the duty to provide safe working conditions. 22

23 The amount of the payment will depend on the number of years of service and the monthly salary. The employee will be entitled to a transitional payment equal to one-sixth of the monthly salary for every six months of service (or one-third of the monthly salary for each year of service). An employee who has at least 10 years service will be entitled to one-quarter of the monthly salary for each six months of service (or one-half of the monthly salary for each year of service). The monthly salary includes the holiday allowance, fixed fringe benefits (such as overtime pay and shift allowance) and variable fringe benefits (such as the average bonus, profit distribution and year-end bonus for the last three years). The transitional payment will only be accrued per each complete six-month period, that is, it is not rounded up. If the employee has been employed for three years and five months, then the last five months will not be factored into the calculation. The maximum transitional payment will be EUR 75,000 or one year s salary (if this is higher than EUR 75,000). The employer and employee may agree to higher payments in the employment contract or termination agreement. The statutory transitional payment may be derogated from in a CLA. In that instance though, equivalent compensation must be offered. Calculation of number of years of service For purposes of calculating the number of years of service, one or more prior employment contracts between the same parties, which have followed one another with intervals not exceeding six months, will be added together. Whether the same work was involved is irrelevant. If the employee was successively employed by different employers, which can be viewed as each other s successors in terms of the work performed, these periods will be added together as well. This will be the case, for example, if an employee performed the same (or nearly the same) work for the same company first as an agency worker and later under an employment contract. The intervals between two temporary employment contracts will not be counted in calculating the amount of the transitional payment. If the add-together rule results in a right to a transitional payment twice, the payment made earlier may be set off against the later payment. NOTE The right to the statutory transitional payment applies not only to employees with a permanent employment contract, but also to employees with a temporary employment contract which has lasted for at least two years and which is not extended on the employer s initiative. If you make sure, however, that the employment contract is for less than two years, the transitional payment will not be owed. It should be mentioned that, for purposes of calculating the amount of the transitional payment for an employee with a temporary employment contract, successive employment contracts between the same parties and successive employers must be taken into account. Periods do not need to be added together if the interval between the successive employment contracts exceeds six months. 23

24 2.6.1 No transitional payment owed The transitional payment will in principle always be owed upon the termination of a temporary or permanent contract, unless: the employee was employed for less than two years; the employee is younger than 18 and on average works at most 12 hours a week; the employee committed a seriously culpable act or omission (such as theft, fraud, acting contrary to the applicable code of conduct at the employer or repeatedly failing to comply with medical examination rules in the case of illness). The court may nonetheless award the employee a full or partial transitional payment if, in view of the specific circumstances of the case, not awarding this would be unacceptable according to the standards of reasonableness and fairness. One example might be a relatively minor mistake after a very long period of service; the employee has been dismissed because he or she has reached the state pension age; the employer has been granted a suspension of payments or put into liquidation or if a debt restructuring scheme applies to it; the employee voluntarily terminates his or her employment. This will only be different if the employee gives notice because of a seriously culpable act or omission by the employer; or the employer and employee have concluded a termination agreement. In such situations, the parties themselves can agree on the severance payment. In most cases, however, the employee will not be satisfied with a severance payment that is lower than the transitional payment. If the employer terminates the employment contract with the employee s written consent, it will owe a transitional payment Temporary exception for employees aged 50 and above For employees aged 50 years and above who have been employed at the employer for over 10 years, a transitional scheme will apply until 1 January For every six-month period that this person over 50 was employed by the employer after reaching the age of 50, he or she will receive half a month s salary (or one month s salary for each year of service worked). This scheme for people over 50 will not apply to companies employing fewer than 25 people or to employers exempted pursuant to an order in council. NOTE It is not entirely clear yet whether the higher calculation standard of half a month s salary will start to run from the next six-months-of-service moment after the employee turns 50 or immediately from his or her 50th birthday. With the latter method, the date that the employment ends may affect the amount of the transitional payment. In practice, the assumption, at this time, is that the latter calculation method will have to be applied Temporary exception for small employers A transitional scheme will apply until 1 January 2020 to small employers, averaging less than 25 employees. If the small employer reorganises because its financial situation is poor, the months before 1 May 2013 need not be considered when calculating the amount of the transitional payment. The following cumulative conditions will apply: 24

25 a) the net earnings for the employer s company for the three financial years prior to the financial year in which the employment contract ends or is not continued, must be less than zero; b) the value of the company s net assets (as referred to in the Financial Statements Formats Decree ( Besluit modellen jaarrekening )) as at the end of the financial year ending prior to the financial year in which the employment contract ends or is not continued, must be negative; and c) the current floating assets within the employer s company as at the end of the financial year ending prior to the financial year in which the employment contract ends or is not continued, must be less than the current liabilities. This is the case if the current ratio is less than 1. Exception This scheme will not apply to an employer which is part of a group and, in the second half of the calendar year prior to the financial year in which the employment contract ends or is not continued, the employers making up this group jointly had 25 or more employees on average Payment in instalments If the payment of the transitional payment would result in unacceptable consequences for the employer s business operations, it may be paid in instalments. The instalments may not extend for a period longer than six months. This period will start to run when statutory interest is owed on the amount of the transitional payment: one month after the employment contract was terminated Deduction of transitional and employability costs The employer may deduct transitional and employability costs from the transitional payment. Transitional costs are costs incurred in terminating or not extending an employment contract which are aimed at preventing or curtailing unemployment. Examples include training and outplacement costs, as well as costs for observing a notice period that is longer than what is applicable between the parties, with the employee being free to look for another job. Employability costs are costs incurred during the employment contract and which are aimed at increasing the employee s employability outside the employer s organisation. One example is an accountant who wants to pursue a course on coaching skills, even though the accountant s current position provides no reason to do this. Costs incurred for increasing possibilities for internal reassignment, or which are directly related to the employee s responsibilities, may not be deducted, however. Under the law the employer must actually already incur such costs (see section 2.5). Employability costs likewise include costs for dual programmes, such as vocational learning programmes. The primary requirement for deducting transitional and employability costs from the transitional payment is that the employee needs to have consented to this in writing beforehand. Such consent might be laid down in a training agreement or in the employment contract (or an addendum to it). Consent is not necessary if the employer incurs costs in connection with collective agreements by which it is bound. The transitional and employability costs must also be reasonably proportional to the goal for which the costs were incurred. Employability costs may not be deducted, either, if they were incurred more than five years ago, unless the employer and employee agreed to another period. Finally, transitional costs consisting of costs which are related to the employer s applying a longer notice period may only be deducted if the employee is exempted from performing work during this longer notice period. 25

26 2.6.6 Transitional scheme to prevent double payment The Act includes a transitional scheme intended to avoid having to make a contractual payment in addition to a transitional payment. An employee may be entitled to a transitional payment after his or her employment ends and also to payments or facilities under current agreements in the employment contract or agreements in a CLA or a redundancy plan made before 1 July A severance payment is one such payment. Facilities include any agreements which are not payments, such as agreements about retraining or extra training, an outplacement process or a redundancy payment scheme. The transitional scheme distinguishes between collective agreements with employee associations (trade unions) and current agreements formulated in another manner. Collective agreements with employee associations As regards agreements made with employee associations, for instance in a CLA and/or redundancy plan, in which the transitional payment is not taken into account, the basic principle is that these take precedence over the transitional payment. Different rules apply, however, to employees with temporary contracts and agreements relating to changes to unemployment benefits. This transitional scheme will apply until such agreements are extended or changed or no longer apply, but in any event until no later than 1 July This scheme will likewise apply if the employment contract ends on or after 1 July 2016, but proceedings before the Employee Insurance Agency or Subdistrict Court were initiated before 1 May The scheme also comes into play if a CLA remains in force or is tacitly extended. Finally, collective agreements with employee associations may state that the transitional provisions will remain in effect if part of the agreements are extended or changed or no longer apply and that is not the case for the other elements of the agreement. Employees with temporary contracts If collective agreements include payments or facilities, for employees with temporary contracts, that are more limited compared to those for employees with permanent contracts, these will not take precedence over the transitional payment. The employee will therefore retain the right to a transitional payment. Agreements in connection with changes to unemployment benefits Collective agreements with trade unions in connection with changes to unemployment benefits, which are solely intended to compensate employees for the slower accrual of unemployment benefits and the shortened maximum benefits period, will be owed in addition to (and not instead of) the transitional payment. Other current agreements As for other current agreements, that is, agreements made individually (in the employment contract, for instance) or with the works council, the basic premise is that the employee may choose between the transitional payment and the payments or facilities under these agreements. This transitional scheme will apply until such agreements are extended or changed or no longer apply. The end date of 1 July 2016 does not apply here. Duty to inform To ensure that the employee does not agree to a choice which is disadvantageous to him or her, the employer has a duty to inform the employee. The employer must provide the employee with written information about: 26

27 the consequences of his or her choice (if the employee does not waive his/her claims under the other current agreements, the employee s right to the transitional payment will be extinguished); the time period within which the employee must state his or her choice; the amount of the transitional payment to which the employee is entitled; and the payments and facilities to which the employee is entitled under the other current agreements. The employer need not, though, inform the employee about the amount of these payments and facilities, as the scope or value of such agreements cannot always be quantified. The employee must state his or her choice in writing no later than four weeks after the employer provides the information. If the employee does not make a choice, the employee s right to the transitional payment will be extinguished. Of course, the employee will in that case still be entitled to the payments and facilities under the other current agreements. As long as the employer does not provide any information to the employee, the employee will retain the right to both the transitional payment and the payments and facilities under the other current agreements. If the employer provides incorrect or incomplete information to the employee and, based on this information, the employee makes a decision, this decision may be nullified pursuant to a claim of vitiated consent (threat, fraud, abuse or mistake). Vitiated consent may also be invoked if the employee, without knowing the consequences, waived the right to the transitional payment without having received information from the employer. Overlap If the current collective agreements with employee associations overlap with other current agreements, the current collective agreements will take precedence over the transitional payment and the transitional payment will not be owed. In these situations, then, the options model (until 1 July 2016 at the latest) will not apply. Besides the collective agreements, the employee will simply retain the right to the individually agreed severance payment. TIP For new employment contracts or extensions of temporary contracts, a provision should be included that the transitional payment (see section 2.6) will be deducted from the contractual payments or facilities Measures to avoid problems due to the transitional payment taking immediate effect The transitional payment is effective immediately. This means that, in principle, it will apply to any employee dismissed on or after 1 July 2015 and that, in calculating the amount of the transitional payment, the periods before 2015 will be counted. As a result, employment contracts following each other with an interval of at most six months will be counted, too (see section 2.6). The fact that the payment will be effective immediately will mainly have unintended and undesirable effects for sectors where there are seasonal or other temporary workers. To prevent such workers from losing their jobs because of an imminent transitional payment, the government has come up with the following three measures: 27

28 1) Job guarantee: postponement of transitional payment The purpose of the first measure is to prevent an employer from owing a transitional payment on or after 1 July 2015 immediately after a temporary employment contract ends. Accordingly, under this measure, an employer will not owe a transitional payment (or not owe it yet) if it provides the employee with the guarantee that he or she can come back to work at the employer after six months at the latest. This guarantee must consist of a new (temporary or permanent) employment contract starting in no later than six months, calculated from the date on which the temporary contract ended. 2) Transitional provisions: employment contracts before 1 July 2012 The second measure includes transitional provisions. Under these provisions, for purposes of determining the right to and the amount of the transitional payment, employment contracts which ended before 1 July 2012 and followed each other with an interval of more than three months (or a shorter period, if this applied under the CLA or scheme) will not be counted. Employment contracts which followed each other after 1 July 2012 with an interval of at most six months will be counted. 3) Encouraging permanent employment contracts The third measure is designed to encourage employers and employees to enter into permanent employment contracts. This measure states that, if a permanent employment contract is entered into before, on or after 1 July 2015, the prior employment contracts that were terminated before that date and for which there were intervals of longer than three months (or a shorter period, if this applied under the CLA) will not be counted in calculating the amount of the transitional payment. 28

29 For more information about this publication, please contact: Hermine Voûte T E hermine.voute@loyensloeff.com Klaas Wiersma T E klaas.wiersma@loyensloeff.com Edith Franssen T E edith.franssen@loyensloeff.com Maureen te Poel T E maureen.te.poel@loyensloeff.com Ralph Leeuwrik T E ralph.leeuwrik@loyensloeff.com Disclaimer Although this publication has been compiled with great care, Loyens & Loeff N.V. and all other entities, partnerships, persons and practices trading under the name Loyens & Loeff, cannot accept any liability for the consequences of making use of this issue without their cooperation. The information provided is intended as general information and cannot be regarded as advice. 29