Giving Notice in the Netherlands: Avoid Disputes Later

A fixed-term employment contract is about to expire. You inform the employee that his contract will not be renewed and think that’s the end of it. In practice, however, things often go wrong under Dutch employment law with the notice requirement. A recent ruling by the Rotterdam District Court shows why. Giving notice is one thing, but can you also prove that it reached the employee in time?

What does the notice requirement entail?

Under the statutory notice requirement, for a fixed-term employment contract of six months or longer, you must notify the employee in writing no later than one month before the end date whether or not you intend to renew the contract. If so, you must also specify the terms and conditions.

If you fail to provide notice or do so too late, the employee may be entitled to compensation of up to one gross monthly salary. The obligation to give notice seems simple, yet it regularly gives rise to disputes.

“In writing” also means “verifiable”

This was also the case in a recent matter before the Rotterdam District Court. The employer argued that the notice letter had been posted in a timely manner on the AFAS online HR portal. The employee, however, disputed that he had received the letter.

The employer could not explain how the employee could have known that the letter was available to him. A message, email, or push notification may have been sent, but the employer could not provide proof of it.

This proved costly for the employer. The judge ruled that the employer had failed to sufficiently demonstrate that the employee had received the notice in a timely manner. The employer was therefore ordered to pay a full month’s salary as notice pay.

Even the fact that the pay stub listed a “termination” date did not help the employer. According to the judge, such a date alone is insufficient to constitute notice.

How can you properly give notice?

Notice does not necessarily have to be given by registered letter. Other written means of communication can also be used. Examples include an email, a WhatsApp message, or a digital HR portal.

But if you choose one of these other methods, make sure you can prove afterward what you communicated, when you did so, and that the message reached the employee. It is precisely this last point that regularly causes problems in practice.

You can also include the notice provision when you enter into the fixed-term employment contract. The employee will then know from the start that, in principle, the employment contract will not be renewed after the agreed-upon period. Keep in mind, however, that this limits your flexibility if you later decide you do want to continue working with the employee.

Takeaway: Make the notice verifiable!

Do you want to avoid disputes and a potential notice payment? Then be sure to keep these three points in mind:

1. Be timely: Don’t wait until the last day; allow plenty of time.
2. Be clear and put it in writing: Leave no doubt as to whether or not the employment contract will be continued.
3. Keep proof: Not only document that you sent or posted the notice, but also ensure you can prove that it reached the employee.