Restructuring without hard figures: is that allowed?

Employment Law

9 September 2026

Restructuring without hard figures: is that allowed?

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?

Must a restructuring always be substantiated with hard figures, KPIs and a watertight business case? Not necessarily, as shown by an interesting ruling of the Enterprise Chamber (“OK”) of 13 August 2026 (ECLI:NL:GHAMS:2026:2248) — a ruling worth knowing about for entrepreneurs both with and without works councils.

The case in brief

Amazon decided to carry out a restructuring involving the elimination of dozens of jobs. On 3 November 2025, Amazon submitted a formal request for advice to its joint works council, the Dutch Amazon Works Council. Amazon asked the works council (“OR”) to issue its advice by 1 December 2025 at the latest.

The advisory process: a conditionally positive opinion

Several consultation meetings took place between 7 and 27 November 2025, followed by an additional session on 4 December 2025. On 10 December 2025, the works council issued its opinion: not negative, but not unconditionally positive either.

This is a construction that occurs regularly in practice: the works council gives a positive opinion, but attaches all sorts of conditions to it. In this case, the works council also explicitly added that the opinion would automatically turn into a negative one if Amazon did not accept the stated conditions.

The works council set four cumulative conditions:

Cutting 25 jobs: the works council demanded that the positions within the AGI division (3 employees) and the FinTech division (22 employees) be removed from the request for advice entirely.

Relocation arrangement for the SPS employee: the one redundant employee within the SPS department (Managed IT Services) could only be included in the restructuring if the possibility of relocating to Luxembourg remained open for twelve months.

Agreement on the social plan: Amazon and the works council had to jointly reach a finalised and approved social plan.

Agreement on the communication plan: Amazon and the works council also had to jointly establish a communication plan.

Amazon deviates from the advice

Amazon did not accept the first and most far-reaching condition: the restructuring at AGI and FinTech went ahead regardless. On the SPS employee, the social plan and the communication plan, the parties did reach agreement.

On 22 January 2026, Amazon took the final decision to implement the restructuring in full. As a result, the works council’s opinion — in accordance with the clause set by the works council itself — automatically turned into a negative opinion.

On 26 January 2026, Amazon asked the works council to waive the statutory one-month suspension period (Section 25(6) of the Dutch Works Councils Act, WOR). That period exists precisely to give the works council the opportunity to go to the Enterprise Chamber before the decision is implemented. During that period, the works council tried to reach a settlement by offering Amazon a four-month release from work in exchange for a positive opinion and waiving the suspension month. But Amazon rejected this proposal on 9 February 2026. The works council then took the matter to the Enterprise Chamber.

The works council’s objections before the Enterprise Chamber

Before the Enterprise Chamber, the works council argued that the necessity for eliminating the positions at AGI and FinTech had not been sufficiently substantiated in quantitative and verifiable terms, since concrete KPIs or checkable figures were lacking. It also argued that Amazon had insufficiently investigated whether less drastic alternatives were possible, such as voluntary transfer within AGI or adjustments to the management structure at FinTech.

The ruling: qualitative substantiation can suffice

The Enterprise Chamber explicitly stated that it cannot be laid down as a general rule that a restructuring must be substantiated quantitatively. This is an important finding of principle.

Although Amazon had cited figures that, on closer inspection, were in part no more than management estimates, this was offset by a sufficiently concrete qualitative substantiation. For AGI, it had explained why physical collaboration at hub locations is essential for AI development teams working in an environment of rapid iteration and real-time collaboration.

For FinTech, it had been explained that the strategy had shifted from country-specific to global systems, that the Dutch team had become too small, due to natural attrition, to function efficiently on its own, and that this involved a disproportionate amount of management overhead.

The fact that Amazon also cited quantifications — such as an expected 50% reduction in data validation efforts and 30% lower communication and maintenance costs — played a role in the overall picture, even though these were never hard guarantees. The combination of a clear strategic rationale and a thoroughly conducted advisory process was sufficient for the Enterprise Chamber.

The entrepreneur’s policy discretion

The Enterprise Chamber once again emphasised that an entrepreneur has policy discretion when carrying out a restructuring. The works council may propose alternatives, but the fact that it prefers a different or less drastic solution does not in itself render the decision unreasonable. Genuine alternatives must, however, be seriously investigated or rejected with reasons. That requirement always remains in place.

The Enterprise Chamber’s review is deliberately restrained: not whether the entrepreneur made the best decision, but whether it could reasonably have arrived at this decision. That is a high bar for a works council seeking to have a decision reversed.

What does this mean for entrepreneurs with a works council? And for works council members?

A request for advice need not contain a fully calculated financial case. Far more important is that the entrepreneur can explain a consistent and concrete business rationale, provides the works council with relevant information in good time, genuinely engages with the works council about its objections and alternatives, and ultimately gives good reasons for the chosen approach.

For works councils, the ruling is a reminder that the bar for successfully challenging a restructuring decision is high. That does not mean it is not worthwhile for a works council to critically ask the questions: are the assumptions correct, have the alternatives been seriously weighed, and was the works council genuinely involved or merely informed pro forma? That substantive involvement is precisely what can prompt an entrepreneur to adjust a decision. And if things do go wrong regardless, a well-run advisory process at least provides grounds to raise before the Enterprise Chamber.

And for entrepreneurs without a works council?

Many SME entrepreneurs do not have a works council and are not legally required to have one, as long as they employ fewer than 50 employees. Nevertheless, the lesson from this Enterprise Chamber ruling is relevant to them too.

Anyone carrying out a restructuring without a works council cannot escape the obligation to make the underlying business rationale reasonably plausible. This becomes relevant in dismissal proceedings via the Employee Insurance Agency (UWV), which reviews whether the restructuring is economically necessary and whether the entrepreneur has sufficiently substantiated this. The Enterprise Chamber’s ruling now makes it clearer than ever that a qualitative, substantive explanation can suffice for this, provided it is consistent and concrete. A spreadsheet with projections is not a hard requirement; a clear and well-reasoned account of the business strategy, the organisational choices and the alternatives considered, however, is.

For smaller entrepreneurs, this means in practice: properly document the reasons behind the restructuring, even if there is no works council asking for them. This can later make the difference in a dismissal procedure before the UWV, or in a discussion with an employee about the need to eliminate their position — including during negotiations over settlement agreements.

Conclusion

A business case does not always have to be entirely watertight. The underlying story, however, must hold up substantively. Any entrepreneur carrying out a restructuring would be wise to invest in the quality of the explanation: concrete, consistent, and demonstrably engaged with the objections and alternatives raised. That applies to the large enterprise that must convince a works council, but equally to the SME entrepreneur who must be able to justify their decision to the UWV or to the employee themselves.

Questions about a planned restructuring or the role of the works council in it? Feel free to contact the business lawyers at The Legal Company B.V.

Blog by our employment law expert mr Bente Brouwer.

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.

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