Despidos sumarios en los Países Bajos: explicación de las principales sentencias

Despido sumario (ontslag op staande voet) ends an employment contract with immediate effect and is lawful only if there is an urgent reason (reden bebible) under Articles 7:677 and 7:678 of the Dutch Civil Code (BW), communicated to the employee without delay. The employer must prove both the urgent reason and the speed; the employee has two months to ask the subdistrict court (Tribunal de subdistrito) to annul the dismissal or award fair compensation.

The consequences for the employee are severe: no notice period, no salary from the date of dismissal and often no unemployment benefit from the UWV. The courts respond to that severity with a high threshold. Below we set out what the leading Supreme Court (Hoge Raad) rulings require of employers under Derecho laboral holandésy con qué materiales trabajan los empleados.

When is there an urgent reason?

When the employer cannot reasonably be expected to let the employment contract continue, even for the notice period. Article 7:678 BW gives examples, such as theft, fraud, serious insults, gross neglect of duties and persistent refusal of reasonable instructions.

The list is not exhaustive, and no example leads to dismissal automatically. The court weighs the nature and seriousness of the conduct together with the employee’s circumstances: length of service, age, the consequences of the dismissal and the way he or she has worked so far. In ECLI:NL:HR:2021:596 (16 April 2021), about unauthorised absence, the Supreme Court set aside a ruling because the court of appeal had not examined whether the employer was entitled to refuse the employee’s holiday request. The employer’s own conduct is therefore part of the assessment.

This makes summary dismissal highly case-specific. The same conduct can justify dismissal for one employee and not for another, and the employer carries the burden of proof on every element.

¿Con qué rapidez debe actuar el empleador?

Without delay (sin demora, Article 7:677 paragraph 1 BW). An employer may first investigate a suspicion, but the investigation itself must also be carried out swiftly.

In ECLI:NL:HR:2023:1668 (1 December 2023), the Supreme Court addressed immediacy where the urgent reason consisted of several grounds that the employer had investigated before dismissing the employee. In practice, the courts look at each phase: how fast the employer started the investigation, how fast it was carried out, how fast the employer took note of the findings and how fast it then dismissed. A slow start can be fatal even if the rest moves quickly.

A suspension of the employee during the investigation, with continued pay, helps show that the employer took the matter seriously. Record dates: when the suspicion arose, when the investigation started, when the report came in and when the dismissal was given.

What must the dismissal letter say?

The reason must be communicated to the employee at the same time as, or immediately after, the dismissal (Article 7:677 paragraph 1 BW). The reason must be concrete enough for the employee to understand exactly which conduct led to the dismissal.

The reason given fixes the case. The employer cannot later replace it with another reason, for example by dismissing for poor performance and later relying on fraud. Vague wording such as “breach of trust” without facts weakens the employer’s position, and the courts have annulled dismissals on that ground alone.

Can the employer use evidence found after the dismissal?

Yes, as long as it relates to the reason given at the time. In ECLI:NL:HR:2019:55 (18 January 2019), the Supreme Court confirmed that in annulment proceedings the employer is not limited to the evidence it had when it dismissed.

The same ruling shows the limit of that freedom. The dismissal still failed, because the employer had not investigated whether the employee’s neurological condition prevented her from explaining the missing shop takings. An employer that relies on an employee’s silence must first check whether that silence can be held against him or her.

What about evidence that breaches privacy?

Evidence in Dutch civil proceedings can be provided by any means, and the court assesses it freely (Article 152 of the Code of Civil Procedure, Rv). Unlawfully obtained evidence is only excluded where additional circumstances justify it.

The Supreme Court set out that rule in ECLI:NL:HR:2014:942 (18 April 2014), a case about an insurer’s personal investigation into an insured person, and courts apply it in employment cases too. The court weighs how serious the privacy infringement was, whether the employer had a legitimate ground under the GDPR, whether less intrusive means were available and whether using the evidence is proportionate. Our note on a despido sumario basado en la monitorización de infracciones del RGPD shows how this can go wrong for an employer. A serious breach can also lead to a separate damages claim under Article 82 GDPR.

What can the employee claim if the dismissal was unjustified?

Under Article 7:681 BW the subdistrict court can either annul the dismissal, so that the employment continues and the salary is owed, or award fair compensation (compensación justa) instead. Unlike fair compensation on dissolution, this award does not require seriously culpable conduct by the employer.

Annulment is rarely the choice in practice, because the relationship is usually beyond repair. An employee who accepts the end of the contract can instead claim fair compensation, compensation for the notice period that was not observed (gefixeerde schadevergoeding, Article 7:672 BW) and the transition payment (tarifa de transiciónArtículo 7:673 BW).

There is no formula for fair compensation. In the New Hairstyle ruling, ECLI:NL:HR:2017:1187 (30 June 2017), the Supreme Court held that the court sets the amount by reference to all circumstances, including the value of the employment had it continued, the consequences for the employee and the employer’s conduct. The award is not punitive.

Does the employee keep the transition payment?

In principle yes, because it accrues from the first day of employment. The employer only avoids it by proving that the termination resulted from seriously culpable conduct of the employee (Article 7:673 paragraph 7 BW).

That is a different test from the urgent reason. A dismissal can fail because the employer was too slow or the letter was too vague, while the court still finds the employee’s conduct seriously culpable. The employee then gets compensation for the unjustified dismissal, but no transition payment.

What is the procedure and the deadline?

The employee files a petition with the subdistrict court within two months of the dismissal (Article 7:686a paragraph 4 BW). Missing this deadline means the right to annulment or fair compensation under Article 7:681 BW is lost.

The subdistrict court of the district where the employee usually works hears the case, usually within a few months. The employee pays a court fee (derecho de grifo) at the lower rate for natural persons, as published on rechtspraak.nl. The court can order the losing party to pay a fixed contribution to the other side’s legal costs.

An employer that is unsure whether the dismissal will hold often files a conditional request for dissolution (voorwaardelijk ontbindingsverzoek) in the same proceedings. If the summary dismissal fails, the court can then still dissolve the contract on another ground. An employee in acute financial difficulty can also start summary proceedings (procedimientos sumarios) to claim provisional payment of salary.

¿Qué debes comprobar como empleador?

Most summary dismissals fail on speed or on the letter, not on the facts.

• Record the date the suspicion arose and start the investigation the same week.
• Hear the employee and check whether illness or other circumstances explain his or her conduct.
• Check that monitoring of emails or cameras has a legal basis under the GDPR and was announced.
• Describe the facts in the dismissal letter: date, place, conduct and why it is urgent.
• Weigh length of service, age and the consequences for the employee before you decide.
• Consider a conditional request for dissolution as a fallback.

¿Qué debes comprobar como empleado?

The two-month deadline starts on the day of dismissal, so these checks are urgent.

• Write down the date of dismissal and the deadline for the petition two months later.
• Check whether the letter states concrete facts, or only general accusations.
• Compare the date the employer learned of the facts with the date of dismissal.
• Collect evidence of your service record and personal circumstances.
• Ask how the evidence against you was obtained, for example through covert monitoring.
• Apply for unemployment benefit with the UWV, even if the dismissal may affect it.

¿Qué podemos hacer por usted en caso de despido sumario?

Como se explica en nuestra abogado de despido page, we act for both employers and employees.

• We review the dismissal letter and the timeline within one working day.
• We draft the petition to the subdistrict court within the two-month deadline.
• We calculate the fair compensation, the notice-period compensation and the transition payment.
• For employers, we assess the investigation and draft the dismissal letter and a conditional dissolution request.
• We assess whether evidence was obtained in breach of the GDPR.
• We conduct summary proceedings for provisional payment of salary.

Resumen

• Summary dismissal requires an urgent reason under Articles 7:677 and 7:678 BW, given without delay; the employer must prove both.
• Any investigation must be swift in every phase (ECLI:NL:HR:2023:1668).
• The reason in the dismissal letter fixes the case; later evidence is allowed for that reason only (ECLI:NL:HR:2019:55).
• If the dismissal fails, the court annuls it or awards fair compensation under Article 7:681 BW, plus notice-period compensation and usually the transition payment.
• The employee must file a petition within two months (Article 7:686a paragraph 4 BW).

Preguntas frecuentes