Haste costs the employer hundreds of thousands of euros

Employment Law

22 February 2024

Haste costs the employer hundreds of thousands of euros

Stelt u zich eens voor: u werkt al jaren met dezelfde zelfstandige. Hij stuurt facturen, factureert btw en heeft een eigen kvk-nummer. Toch krijgt u in 2026 ineens vragen van de Belastingdienst over de aard van uw samenwerking. Hoe heeft het zo ver kunnen komen?

In the Netherlands, unlike in many other countries, we have what is known as a preventive dismissal test. This means that you cannot simply unilaterally terminate an employment contract with an employee (except during the probationary period) without the employee’s consent. Article 7:669(3) of the Dutch Civil Code lists the nine “reasonable grounds” on which you can terminate the employment contract, after obtaining the court’s permission. An additional condition for the termination is that redeployment in another suitable position, with or without the help of training, is not possible within a reasonable period.

Nevertheless, in practice it still regularly happens that employers do not comply with these rules, and that can prove costly for you as an employer!
The price can be high: several hundred thousand euros in compensation for the aggrieved employee are not an exception. Two recent rulings confirm this.

The first ruling concerned an employee who has been employed since 2008 by a foundation in Amsterdam affiliated with the Aids Fund. She is 60 years old and a director. The employer seemed very satisfied with her as director until 2023. Until, in the summer of 2023, she was called to account by the parent company in America. There was said to be a toxic work atmosphere in Amsterdam. She was offered a six-month improvement plan, which she signed. But before the plan could really get underway, she was suspended as of 1 August 2023. She could no longer access her laptop or the office building. She reported sick and was ultimately summarily dismissed at the end of October 2023 because of her “mismanagement.” The employer would have been better off not doing this in this way.

As might be expected, the employee did not agree with the summary dismissal and went to court. She stated that she accepted the summary dismissal, but claimed fair compensation of €540,000 for what she considered the “seriously culpable conduct” of her former employer. She also claimed the transition payment and compensation for not observing the notice period. The subdistrict court ruled in her favor: the requested fair compensation – which took into account the employee’s age and the small chance of equally paid work until retirement age – was indeed adjusted to €400,000, but that is still an enormous amount. The other claimed compensation was also awarded. If the foundation indicates that it cannot pay these amounts, the court refers to the parent company.

Conclusion: Haste is rarely good. This employer would have been better off not summarily dismissing the employee. Summary dismissal seems attractive because as an employer you are “immediately” rid of the employee; however, the (financial) risks are particularly large. The foundation would have done better to request dissolution of the employment contract from the subdistrict court in this situation – even on multiple reasonable grounds. The court might have (partly) dissolved the employment contract on the basis of a disturbed working relationship. In that case, the transition payment would have been owed, but the fair compensation of €400,000 would not have come into play. You can read the entire ruling here.

A similar case recently played out in Rotterdam here.

The employee lives in Belgium, is 62 years old and has been employed since 2015. The employer is not satisfied and wants to dismiss him. The employer – who was advised not by one, but by two law firms – did not choose the (correct) dismissal route via Belgium because that procedure would take too long in its view, and instead unilaterally terminated the employment contract without the employee’s consent, by means of a dismissal letter. This employee also accepted the dismissal, but claimed, in addition to back payment of the transition payment and bonus, fair compensation of €470,000 due to serious culpability on the part of his employer. The calculation is based on 50% of his income and pension loss up to his retirement. The court granted his claims, including the requested €470,000 due to the employer’s serious culpability.

Conclusion: as an employer, seek timely legal advice in (potential) dismissal cases, to avoid unnecessarily high costs. This employer should not have taken the risk of unilaterally terminating the employment contract. Perhaps negotiating with the employee for compensation higher than the transition payment would have yielded more result. Going through the Belgian court would indeed have taken longer, but it would have saved the employer €470,000. This employee could have kept working for a very long time on that amount…

The corporate lawyers at The Legal Company specialize in employment law. For support or advice, you can contact us by emailing info@thelegalcompany.nl, calling 020-3450152 or filling out our contact form. We will call or email you back within 24 hours.

Nothing is as changeable as legislation and regulation. Please note that our blogs may no longer align with current legislation and regulations and may therefore be outdated. If you have questions or a problem relating to this blog, or if you require legal assistance, please contact us.

De afgelopen jaren stonden in het teken van de Wet VBAR, het wetsvoorstel dat een einde moest maken aan onduidelijkheid over de zzp’er. Het kabinet heeft delen van dat voorstel inmiddels geschrapt. Op het eerste gezicht is dat goed nieuws: minder regels, minder administratieve last. Maar in de praktijk blijven dezelfde toetsen overeind.

“De inhoud van de samenwerking is leidend, niet wat er op papier staat.”

De Belastingdienst handhaaft sinds 1 januari 2025 weer actief op schijnzelfstandigheid. En recente uitspraken van de Hoge Raad bevestigen dat rechters strikt toetsen of er sprake is van ondergeschiktheid en gezagsverhouding.

Voor uw praktijk betekent dit drie dingen. Een: leg de samenwerking duidelijk vast, met aandacht voor de inhoud. Twee: voorkom dat een zzp’er feitelijk werkt als werknemer. Drie: wees voorbereid op een controle, en weet hoe u de relatie kunt herzien als dat moet.

Heeft u vragen over uw concrete situatie? Wij sparren dagelijks met opdrachtgevers over hun zzp-relaties. Vraag een offerte op of bekijk onze Legal Safe abonnementen.