07 May Newsletter Vestius September 2018
Summary dismissal and the right to wages
If a summary dismissal is quashed by the subdistrict court, but is subsequently upheld on appeal, the employee is not automatically eligible for wages for the period in between, according to a landmark ruling of the Supreme Court of the Netherlands.
A summary dismissal is a very drastic measure. It causes the employee to immediately lose his right to wages and often to unemployment benefits. The law sets strict requirements for such a dismissal, and if an employee challenges the dismissal, courts are especially critical in assessing whether those requirements have been satisfied. If the dismissal is quashed, an employer has three months to appeal that decision with the Court of Appeal.
If the dismissal is subsequently upheld, the employment contract does not terminate with retroactive effect to the original dismissal date, but terminates on the date set by the Court of Appeal. Until now, opinions have been divided over the question whether the employee is eligible for wages for the period in between. In a recent court case, the Court of Appeal ruled that this is the case, in principle, but only if the employee continued to work in the period in between. On 13 July 2013, the Supreme Court endorsed that line of reasoning.
Our conclusion, therefore, is that employers would be wise to bar employees who challenge their summary dismissal from continuing to work until a final decision has been delivered.
For more information or advice on this subject please contact Bas Derhaag or Sander Pieroelie.
Platform work: Working as Deliveroo rider is not false self-employment
Digital platforms provide workforce, such as cleaners (Helpling) or drivers (Uber) on demand. They often work with platform workers who are self-employed. This has given rise to many issues involving the labour-law protection of platform workers.
Sytze Ferwerda is a rider for Deliveroo. Previously an employee, he has been self-employed since 1 February 2018. In court, however, he relied on false self-employment, arguing that he still had an employment contract with Deliveroo.
The Court of Amsterdam ruled against him. There is an employment contract if three criteria are fulfilled: labour, authority and wage. In its review, the court also considered the circumstances of the case, such as the intention of the parties and how the contract was performed.
In this case, the court decided that the self-employment was not false, because the performance of the work had effectively changed after the conversion to a self-employment contract, Mr Ferwerda had agreed to the self-employment structure (intention) and there was no longer a relationship of authority. Mr Ferwerda himself could decide whether to sign in for work, no longer had to observe a dress code, was allowed to work for a competitor and to be substituted by someone else.
Shareholders’ right to add to agenda is limited
Shareholders and depositary receipt holders of a private or a public limited company a right to add to agenda. However, they cannot compel the Board to add an item to the agenda of the general meeting if the matter concerns the Board, according to a Dutch Supreme Court ruling of 20 september 2018 in a dispute between Boskalis and Fugro.
In the relevant case, Boskalis, an almost one-third shareholder of Fugro, wanted to not only discuss the cancellation of Fugro’s protective mechanism against hostile takeovers at the shareholders meeting, but also to vote on the matter. The two parties were agreed that the authority of cancellation vested in the Board rather than in the general meeting, but that the item could be discussed. Boskalis, however, wanted to compel a vote on the issue at the general meeting. The Board of Fugro refused to include the topic on the agenda and Boskalis went to court.
The Supreme Court eventually ruled that the Board of Fugro could not be compelled to include the relevant vote on the agenda, because the Board is not obliged to consult with the general meeting first or involve it in the Board’s decision-making. This is different only if the articles of association or the law include any provisions that deviate from this principal rule.
Compensation scheme adopted for transition allowance after two years of sickness
Occupationally disabled employees who are sick for more than two years and whose dismissal is applied for are eligible for a transition allowance. Since the introduction of the (Dutch) Work and Security Act (‘WWZ’), this has led to many dormant employment contracts as well as frustrated employers. Having had to continue the payment of wages for two years, they were not exactly keen on additionally paying a transition allowance to their occupationally disabled worker.
In the meantime, both Houses of Parliament have adopted the bill on compensation for the transition allowance after two years of sickness (Wetsvoorstel Compensatie transitievergoeding na twee jaar ziekte). Employers who have paid a transition allowance to a long-term occupationally disabled employee since 1 July 2015 will be able to claim that payment back with retroactive effect from the Employee Insurance Agency (UWV) from 1 september 2020. The payment will be made from the General Unemployment Fund (‘Awf).
The (Dutch) Labour Market in Balance Act (‘WAB’) changes the calculation and the composition of the transition allowance. By letter dated 4 July 2013, Minister Koolmees informed the Dutch Lower House that this could lead to amendments to the compensation scheme in a number of respects.
The Minister will provide more clarity on the matter in the fall of 2018. We will keep you posted!
The GDPR three months later: assessment, complaints and a big fine
Most organisations put their privacy policies in order in advance of the introduction of the General Data Protection Regulation (‘GDPR’) on 25 May 2018 and have taken the steps necessary to ensure that their personal data processing is ‘GDPR-proof”.
In mid-July 2018, the Dutch Data Protection authority (‘DPA’) announced that it would start an exploratory survey into the compliance of large organisations with the European rules on privacy. The DPA will assess this in a random survey among large private-sector organisations.
The DPA announced towards the end of June 2018 that it had received over 600 complaints since 25 May, with one third of the 400 analysed complaints relating to issues with the deletion of personal data. Another large number involved the denial of access to personal data and undesirable disclosure of personal data to third parties. Our advice therefore remains to adopt internal procedures to ensure that such privacy requests are handled quickly.
The Dutch DPA has in the meantime collected its first fine, EUR 48,000, from an asset manager who refused to grant full access to a client’s personal details.
In sum, the Dutch DAP is on top of things. So even if your company is GDPR-proof now, please make sure that privacy remains an area of constant attention.
Don’t miss this: The Vestius labour law seminar in November
Vestius organises a labour law seminar every year to keep you abreast of actual and relevant labour-law matters. It continues this tradition into 2018. The seminar will be held on two dates in November: Thursday 1 November 2018 in the afternoon and Thursday 8 November 2018 in the afternoon.
Each of the dates will feature the same program. We advise you to reserve one of those dates in your agenda. A final invitation with the programme will soon be sent by e-mail. For more information or questions, you can contact us on the following email address: firstname.lastname@example.org.
Please feel free to inform your colleagues or business relations of this save the date event!