The Netherlands: Supreme Court rules on the Exception to the Granting of a Transition Payment

Author: Lydia Milders

In its judgment of 24 June 2022, the Supreme Court ruled on the exception to the granting of a transition payment. In this case, a teacher of movement studies at the University of Applied Sciences in Maastricht was accused of transgressive behaviour towards female students, consisting of giving full body massages. The University of Applied Sciences requested termination on the ground of misconduct without granting the teacher a transition payment. The Court of Appeal of Arnhem-Leeuwarden ruled that the teacher’s conduct was culpable, but not seriously culpable. Therefore, the teacher was granted a transition payment.

The question that the Supreme Court had to answer, was whether serious culpability can apply as a rule of thumb in case of transgressive behaviour in relationships of dependence, such as a teacher-student relationship, unless there are exceptional circumstances.

The answer of the Supreme Court is clear: no, that is not possible. There are some exceptions to the employee’s right to a transition payment. One of these exceptions is seriously culpable acts or omissions by the employee. The employee can only lose his right to a transition payment in exceptional cases. Not only the acts or omissions of the employee are of decisive importance, but also the acts or omissions of the employer. A rule of thumb as mentioned is therefore not possible.

Conclusion: The Supreme Court made clear that the loss of the right to a transitional payment is only possible in exceptional cases. Whether this is the case must be assessed on a case-by-case basis. A rule of thumb that qualifies (sexually) transgressive behaviour in relationships of dependence as seriously culpable behaviour is therefore not possible.

Supreme Court 24 June 2022 – ECLI:NL:HR:2022:950