The Dutch Supreme Court recently ruled that conditional
termination of an employment agreement after an instant dismissal
remains possible under the Work and Security Act. But this
possibility is limited: a conditional termination request can only
be granted if the sub-district court considers an instant dismissal
to be unlawful. If the instant dismissal is considered lawful, the
sub-district court cannot grant a conditional termination request,
in anticipation of a potentially different judgment. In other
words, the sub-district court cannot decide on the termination,
because the court of appeal might rule that the instant dismissal
is unlawful and order reinstatement of the employment agreement.
The definitive termination date after an instant dismissal
therefore will remain uncertain for a longer period under the new
law than under the old law. This means that employers can no longer
cover themselves against an unfavourable ruling that the instant
dismissal was unlawful. Employers should also take into account
that proceedings may take longer than before, as the law of
evidence also generally applies to termination request procedures,
including conditional ones. Caution is therefore advisable.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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