Netherlands: New UWV Implementing Rules regarding Dismissal for Commercial Reasons
On 1 August 2018, new Implementing Rules regarding Dismissal for Commercial Reasons (the ‘Implementing Rules’) took effect, and are relevant when filing an application for dismissal with the Employee Insurance Agency UWV.
No Works Council in place? Still required to consult the staff!
In their application for dismissal to UWV, the employer is to indicate whether a Works Council (‘WC’) is in place and whether such WC has been consulted about the decision. In the past, if there was no WC in place due to a lack of enthusiasm among the staff (which is often the case), the employer could suffice by stating that there was no WC in place and that, therefore, the staff had not been consulted. This is, however, a thing of the past. The new Implementing Rules provide that, if there is no OR in place where this is required (>50 staff), the rules for businesses with staff of 10 to 50 must be applied. This means that any decision that may lead to redundancy of jobs, or a change in the duties of at least 25% of the staff, must be discussed in a meeting with the staff, and their advice is to be requested about that decision. If no such meeting has taken place yet, the application for dismissal is premature and the application will be rejected by UWV.
Category of exchangeable positions; starting point is the job description
Further to case law (Dutch Supreme Court (HR) 14 July 2017, “tanteLouise”), the new Implementing Rules clarify the methods for establishing whether the positions are exchangeable (comparable). What is of relevance, is the appointment, the associated wage scale and the duties that the employer may require under the employment agreement. The starting point of the job content is the job description. The actual situation will be taken as a starting point only if there is no written job description or if the description strongly differs from the actual situation. Temporarily performing duties that do not come under one’s own job description will not lead to a change in one’s position.
Active role of employer in reassignment within (international) group
The Implementing Rules address more extensively, among other things, the active role of the employer to investigate the possibilities of reassigning the employee within the business or (international) group. The employer is to provide a list of vacancies and assignment options (positions of ‘voluntary leavers’) throughout the (international) group. It is obvious that the employer will conduct a reassignment interview with the employee. In such interviews, arrangements can be made about the maximum commuting distance/time, the minimum salary (scale) and the employee’s willingness to work for another division of the group, either within the Netherlands or abroad. If the employee has limited their availability to the maximum commuting distance/time (to be demonstrated by the employer), the employer may also limit the said list accordingly.
