Selected case law January-July 2022 (Dutch Supreme Court, opinions Advocate General, Central Appeals Tribunal, and CJEU)
Employee's inappropriate behaviour and entitlement to transition allowance (Supreme Court, 24 June 2022, ECLI:NL:HR:2022:950) (Dutch only)
Employees only lose their entitlement to transition allowances in exceptional circumstances, in which it is evident that the acts or failure to act of the employee resulting in the termination of the employment contract are to be considered not just culpable conduct but in fact seriously culpable conduct in the working relationship with the employer. Where there are grounds for doing so, the assessment whether this is the case needs to factor in the act or failure to act on the part of the employer, the baseline position not being that blame attaches to the employee 'simply’ on account of the employee's (inappropriate) behaviour. As it is, that baseline position would do insufficient justice to an employer's responsibility to prevent, to the extent possible, inappropriate behaviour in the workplace and to intervene as soon as inappropriate behaviour is flagged.
Balancing interests in event of non-compete clause (Supreme Court, 17 June 2022, ECLI:NL:HR:2022:894) (Dutch only)
When weighing the interests of employee and employer when it comes to the validity of a non-compete clause under Article 7:653 of the Dutch Civil Code (DCC), the employer's interest in keeping an employee on the payroll for a specific time is irrelevant, even if the employer needs time to recruit a successor in a tight labour market.
Assessing summary dismissal: all circumstances of the case (Supreme Court, 10 June 2022, ECLI:NL:HR:2022:860) (Dutch only)
When assessing the question whether dismissal is for cause, all circumstances of the case need to be considered together and in context. Those circumstances in any event include the nature and severity of the conduct and the nature of the employment relationship, its duration and the general performance by the employee, as well as the employee's personal circumstances, such as the employee's age and the consequences of summary dismissal. Taking all relevant circumstances into consideration, the court must set them out in its assessment and grounds for its decision.
Article 7:628 DCC (new) must be interpreted in the same way as Article 7:628 DCC (old) (Supreme Court, 3 June 2022, ECLI:NL:HR:2022:823) (Dutch only)
On 1 January 2020, the provisions of Articles 7:627 and 7:628 (1) DCC (old) were consolidated into Article 7:628 (1) DCC (new), pursuant to which an employee retains the right to remuneration even if he did not perform the contracted work, unless the non-performance of the contracted work should not reasonably be for the account of the employer. The amendment does not have the intention of changing the substance of the distribution of risks between employer and employee, or of the Supreme Court case law. Relevant remains that the employee must have be willing (and have expressed this willingness) to perform the contracted work.
Resolution (or absence of such resolution) to appoint a director (Supreme Court, 3 June 2022, ECLI:NL:HR:2022:817) (Dutch only)
81 RO. Attorney General: A resolution to appoint a director under the articles of association does not have to satisfy any requirements of form and its existence may be presumed if no evidence is shown of a formal vote (in a meeting) and the result of this vote has not been recorded. The submission by the shareholder (or shareholders) of a Chamber of Commerce form serving to register a person as a ‘director’ of the company may encompass a resolution to appoint (outside a meeting) or constitute a circumstance contributing to the presumption of the existence of a resolution to appoint. However, such form does not constitute cogent evidence of the existence of a resolution to appoint, because there may simultaneously be facts or circumstances suggesting otherwise.
Payment of transition compensation tied to end date of employment (Central Appeals Tribunal, 1 June 2022, ECLI:NL:CRVB:2022:1180) (Dutch only)
In a situation where an employment contract terminates after 1 July 2015 and the two-year disability period ends before 1 July 2015, entitlement arises to payment of the transition compensation. This compensation then covers the period until the end date of the two-year period within which termination on account of disability is not allowed. Article 7:673e(2) DCC merely places a cap on the amount of the compensation.
Article 9a of the Placement of Personnel by Intermediaries Act (in short: WAADI) may apply to self-employed persons who wish to be given an employment contract of the recipient (Supreme Court, 20 May 2022, ECLI:NL:HR:2022:751) (Dutch only)
The ban on impediments laid down in Article 9a WAADI does not automatically apply if a temping agency seconds a self-employed person to a recipient. It only does if the self-employed person is to be considered an employee within the meaning of the Employment Agency Work Directive (Directive 2008/104/EC) and is protected as such under domestic law.
Restart after bankruptcy (CJEU, 28 April 2022, ECLI:EU:C:2022:321)
A pre-pack can fall under the exception of transfer of an undertaking, if (i) the purpose of the pre-pack is to make liquidation of the assets of the transferor possible, and (ii) the proceedings are supervised by a competent public authority, which conditions are met if the pre-pack was prepared by a ‘prospective insolvency administrator’ supervised by a ‘prospective supervisory judge’. This does require that the pre-pack procedure is provided with a statutory basis in the Netherlands.
Jurisdiction Dutch courts in the event of a request to terminate employment contract of an employee living abroad (within the EU) (Supreme Court, 11 March 2022, ECLI:NL:HR:2022:345) (Dutch only)
The main rule (Article 22(1) Brussels-I bis Regulation) that an employer may bring proceedings only in the courts of the Member State in which the employee is domiciled, notwithstanding Dutch courts may assume jurisdiction to hear and decide on the matter if the employee appears before a Dutch court and the court has verified that the employee has been notified of the right to challenge the court's jurisdiction and of the consequences of appearing or not appearing (duty to verify). The Dutch court must provide clear reasons and state which points of reference it used to conclude that the duty to verify has been satisfied.
Claim industry-wide pension fund falls outside scope of WHOA (Supreme Court 25 February 2022, ECLI:NL:HR:2022:328) (Dutch only)
Pursuant to Article 369(4) of the Dutch Bankruptcy Act, pension rights are terms of employment which are excepted from the private composition offered by the Court Approval of a Private Composition (Prevention of Insolvency) Act (Wet Homologatie Onderhands Akkoord, or “WHOA”).
Reporting ill after filing of application for dismissal does not prevent termination of employment contract (Supreme Court, 18 February 2022, ECLI:NL:HR:2022:276) (Dutch only)
The prohibition against terminating an employment contract while the employee is ill does not stand in the way of the contract being terminated for business management considerations, if the employee reported sick after an application for their dismissal was filed with the UWV and before the application for termination was received by the court.
Seriously culpable conduct of employer and full and final discharge as condition for assisting in termination of dormant employment contract (Supreme Court, 21 January 2022, ECLI:NL:HR:2022:63) (Dutch only)
(i) The assessment of an employee-initiated application for termination of the employment contract must take into consideration all facts and circumstances of the matter, together and in context. This applies likewise to the assessment whether the termination is caused by seriously culpable conduct or failure to act on the part of the employer. Considered together and in context, repeated culpable conduct may constitute seriously culpable conduct.
(ii) An employer's conduct does not testify to good employment practices if he will accept the employee's “Xella” proposal only on condition that the employee grants the employer full and final discharge for any other claims.
Director's liability for pension contributions does not end one year after transfer of undertaking (Supreme Court, 14 January 2022, ECLI:NL:HR:2022:13) (Dutch only)
A director's liability for back pension contributions is a joint and several liability within the meaning of Article 23 of the Sectoral Pension Fund (Obligatory Membership) Act 2000 [Wet verplichte deelneming in een bedrijfstakpensioenfonds 2000] and is not contingent on the liability of the legal entity. It follows that the liability of the director does not end when the legal entity cannot be held liable on the transfer of the undertaking pursuant to Article 7:663 DCC.
Selected policies and legislation issued in the first six months of 2022
No work permit required for Ukrainian refugees (Staatsblad 2022, 130) (Dutch only)
Subject to conditions, since 4 March, Ukrainian refugees willing to work in the Netherlands do not need a work permit for persons from outside the EEA. This transition period may be extended by consecutive periods not exceeding three months. Due to end on 31 May 2022, the first period has already been extended up to and included 31 August 2022 (Staatscourant 31 mei 2022, 14435) (Dutch only).
Legislation and regulations in force from 1 July 2022
Minimum and maximum wages as from 1 July 2022 (Staatscourant 2022,11945) (Dutch only)
The minimum wage for employees 21 years of age and over working a full-time working week is: EUR 1,756.20 per month, EUR 405.30 per week, EUR 81.06 per day and EUR 11.26 per hour for a full-time working week of 36 hours, EUR 10.67 per hour at a full-time working week of 38 hours, and EUR 10.14 at a full-time working week of 40 hours. The central government (Rijksoverheid) has put up a toolon its website to calculate the minimum wage per hour. The maximum wage per day has been set at 232.90. Additional information may be gathered from the calculation rules.
Applications for work permits (TWV) through the employer's portal at UWV from 1 July 2022 (Newsletter UWV) (Dutch only)
From 1 July 2022, it is possible for employers to apply to the UWV for work permits remotely (using eRecognition on the employer's portal).
International tax rules relating to remote working from 1 July 2022 (Staatscourant 2022, 9700, 9701 and Staatscourant 2022 nr. 14656) (Dutch only)
The agreements made (in the wake of the COVID-19 pandemic) between the governments of the Netherlands. Belgium and Germany on the taxation of employed cross-border workers working remotely will not be extended again and will cease to have effect from 1 July 2022. Until this date, days when such workers work from home may be treated as days worked in the country where the cross-border worker would habitually have worked, provided such days are taxed in the other country.
The Dutch government has initiated consultations with neighbouring countries to review whether the increased popularity of remote working may result in a modification of the tax treaties to include new arrangements for cross-border workers, said State Secretary Van Rij for Tax Affairs and the Tax Administration in a response (of 9 June 2022) to questions from MPs. The State Secretary announced that the Minister for Social Affairs and Employment will inform the House of Representatives before summer recess about progress in the consultations with our neighbouring countries and the EU.
International social security agreements re remote working from 1 July 2022
Initially, the EU agreements not to attach any consequences to the changes in working patterns for the applicable social security legislation (resulting from remote working) were due to expire on 1 July 2022. However, the EU Administration for the coordination of social security systems have agreed that for the next six months - until 1 January 2023 - cross-border workers continuing to work from home need not fear that they will switch social security systems. This gives the Member States time to work towards a structural solution of social security issues relating to remote working. Again, the House of Representatives will be briefed of progress and subsequent steps before summer recess.
Report on male/female ratio in executive positions at listed companies from 1 July 2022 (Staatsblad 2022, 182) (Dutch only)
Since 1 January 2022, large companies, whether privately or publicly held, are required to formulate appropriate and ambitious targets for the male/female ratio on their boards, supervisory boards and senior management. Companies are required to report progress to the Social and Economic Council. The Directors’ Report (Contents) Decree (Besluit inhoud bestuursverslag) provides for an obligation to include this information in the companies’ directors’ reports from 1 July 2022.
Legislation and regulations due to come into force between July 2022 and January 2023
Transparent and predictable working conditions - 1 August 2022
The bill for the Transparent and predictable working conditions (Implementation of EU Directive) Act was adopted by the Dutch Senate on 21 June 2022. The key provisions of this Act pertain to mandatory training and compensation of training costs (Article 7:611a DCC), allowing (or disallowing) employment with other employers (Article 7:653a DCC), the disclosure duty (Article 7:655 DCC), the introduction of rules on unpredictable work patterns and a specific disclosure duty (about allowances and compensation of certain expenses in particular) for employees who are seconded to other EU Member States. The Act is intended to have immediate effect from 1 August 2022 - there will be no transitional law.
Paid parental leave - 2 August 2022 (Staatsblad 2021, 592, Staatsblad 2021, 595 en Staatsblad 2022, 174) (Dutch only)
Parents are entitled to unpaid parental leave until their child reaches the age of 8. The maximum leave is 26 times the number of hours in a parent's working week. From 2 August 2022, out of those 26 weeks parents are entitled to paid leave for 9 working weeks in the first year of their child's life, this allowance - at 70% of the maximum per diem wages - to be paid by the UWV. Entitlement to this allowance extends to adoptive and foster children under the age of 8 in the first year of their being part of the family. This leave may be spread out of a longer period of time. Any paid leave not taken in said period may be taken as unpaid parental leave - up to 26 weeks.
Protection of whistleblowers - implementation of Directive - unclear (letter to the House of Representatives of 9 June 2022) (Dutch only)
The bill for the Whistleblowers Protection Act (Wet bescherming klokkenluiders), to implement EU Directive EU 2019/1937 is still being debated by the House of Representatives. The Minister for Internal Affairs has announced a technical briefing before summer recess, a second memorandum of amendment, and a progress report.
Direct effect of Directive in relation to public-sector employers since 17 December 2021
In view of the fact that EU Directives have direct effect on the public sector, the new protection measures do apply to persons reporting breaches perpetrated by public sector employers (national, provincial and municipal authorities, water boards and autonomous administrative authorities under public law). In addition, their internal reporting procedures must comply with the new requirements as from 17 December 2021, the date on which the Directive should have been implemented. These requirements can be found here: Checklist internal reporting procedure (Dutch only).
Enforcing the Assessment of Employment Relationships (Deregulation) Act (“Wet DBA”) (letter to the House of Representatives of 24 June 2022) (Dutch only)
In a joint letter to the House of Representatives, the State Secretary of Finance and the Minister of Social Affairs and Employment communicated to the Members of Parliament that the government has the ambition to lift the enforcement moratorium on 1 January 2025 at the latest. In autumn, another joint letter will follow, also on behalf of the Minister of Economic Affairs and Climate Policy, about ‘working as a self-employed person’, which letter will set out in specific detail when and in what way the enforcement moratorium may be lifted.
Work where you want and hybrid working
This member's bill (submitted in January 2021) would regulate the situation where an employee's request for adaptation of the workstation can only be denied by the employer for material business or service interests. In response to the advice of the Social and Economic Council on hybrid working (which was published on 31 March 2022) the members that introduced the bill substituted the test of material business interests for the test of reasonableness and fairness. Any request by an employee to work from home (within the EU) would have be allowed by the employer if “in view of all circumstances of the case, the employer concludes that the request, taking into consideration all standards of reasonableness and fairness, outweighs the employer's interests”. The first plenary hearing of the amended bill in the House of Representatives took place on 14 June 2022 and it will continue in July 2022. The Agenda for the future of hybrid working (Agenda voor de toekomst van hybride werken) of the Ministry of Social Affairs and Employment and the reply of the Minister of Social Affairs and Employment to this advice of the Social and Economic Council about hybrid working can be found here: Letter to the House of Representatives of 20 June 2022 (Dutch only).
A look ahead at 2023
Statutory minimum wage to be increased in three stages from 2023
The government wants to move up the date for the increase of the statutory minimum wage (by 7.5% in three annual stages), as agreed in the coalition agreement, by one year, to 1 January 2023. The 2023 increase will be effectuated by means of a governmental decree, as a result of which all wage-related benefits and maximum per-diem wages will rise as well. The increases for 2024 and 2025 will require amendment of current legislation. In 2024 and 2025, the wage-related benefits and maximum per-diem wages will not increase.
Travel allowance to be increased in 2023
The increase of the tax-exempt travel allowance will also be moved up by one year. The current allowance, of 19 eurocent per kilometre, will rise to 21 eurocents in 2023, according to the government’s Spring Memorandum.
CO2 emissions commuting and business travel large employers - effective 2023
The Climate Agreement provides that a standard will be imposed on large companies, with 100 employees or more, to lower their carbon emissions generated by commuting and business travel. From 2023, large employers will be required to report on their employees’ commuting and business travel emissions. If they are on course to lowering their emissions, their obligation ends at reporting. If not, they will be obliged – from 2025 – to seek ways for 'smarter and more economical’ means of travel.
Evaluation of rehabilitation report (company doctor's opinion to be guiding) - unclear
From 1 September 2021, the opinion of the company doctor was supposed to be the guiding opinion in the evaluation of the rehabilitation report by the UWV. The aim of this measure is to avoid wage sanctions due to a medical difference of opinion between the company doctor and the UWV’s medical adviser. When the previous government fell, the bill was labelled ‘controversial’ but it was put on the agenda of the House's standing committee for social security again on 16 May 2022. However, the legislative consultations have been suspended until further notice.
Compensation of transition allowances paid on cessation of business due to illness not in 2022
Since 1 January 2021, small employers (fewer than 25 employees) are eligible for compensation of transition allowances paid on cessation of business due to the employer's retirement or death. The option to allow compensation in the event of cessation of business due to the employer's illness has been moved backwards again. This regulation will not be implemented in 2022, according to the Ministry of Social Affairs and Employment's amended budget statement.
Abridgement continued payment of wages to ill old-age pensioner s (‘OAP's’) to 6 weeks from 13 weeks deferred until 1 July 2023
The abridgement of the obligation to continue to pay wages to ill OAPs has been deferred until 1 July 2023, as is clear from the draft Collective (Social Affairs and Employment) Act 2023 (Verzamelwet SZW 2023). OAPs who are ill on that date will be covered by the longer period of 13 weeks. This also applies when two periods of illness succeed each other with an interval of less than four weeks, with the second period commencing after 1 July 2023.
Right to inaccessibility - unclear
In July 2020, the member's bill to amend the Working Conditions Act (Arbeidsomstandighedenwet, or “Arbowet”) to allow for employers and employees to discuss the right to be unavailable to perform work outside working hours (the Entitlement to Inaccessibility Act) was introduced in the House of Representatives. On 16 March 2022, MP Kathmann informed the President of the House of Representatives that she would defend the bill instead of the member who originally introduced it (Gijs van Dijk). There have been no other developments over the past six months, and the bill still awaits a debate in the House.
Selected case law January-July 2022 (Dutch Supreme Court, opinions Advocate General, Central Appeals Tribunal, and CJEU)
Employee's inappropriate behaviour and entitlement to transition allowance (Supreme Court, 24 June 2022, ECLI:NL:HR:2022:950) (Dutch only)
Employees only lose their entitlement to transition allowances in exceptional circumstances, in which it is evident that the acts or failure to act of the employee resulting in the termination of the employment contract are to be considered not just culpable conduct but in fact seriously culpable conduct in the working relationship with the employer. Where there are grounds for doing so, the assessment whether this is the case needs to factor in the act or failure to act on the part of the employer, the baseline position not being that blame attaches to the employee 'simply’ on account of the employee's (inappropriate) behaviour. As it is, that baseline position would do insufficient justice to an employer's responsibility to prevent, to the extent possible, inappropriate behaviour in the workplace and to intervene as soon as inappropriate behaviour is flagged.
Balancing interests in event of non-compete clause (Supreme Court, 17 June 2022, ECLI:NL:HR:2022:894) (Dutch only)
When weighing the interests of employee and employer when it comes to the validity of a non-compete clause under Article 7:653 of the Dutch Civil Code (DCC), the employer's interest in keeping an employee on the payroll for a specific time is irrelevant, even if the employer needs time to recruit a successor in a tight labour market.
Assessing summary dismissal: all circumstances of the case (Supreme Court, 10 June 2022, ECLI:NL:HR:2022:860) (Dutch only)
When assessing the question whether dismissal is for cause, all circumstances of the case need to be considered together and in context. Those circumstances in any event include the nature and severity of the conduct and the nature of the employment relationship, its duration and the general performance by the employee, as well as the employee's personal circumstances, such as the employee's age and the consequences of summary dismissal. Taking all relevant circumstances into consideration, the court must set them out in its assessment and grounds for its decision.
Article 7:628 DCC (new) must be interpreted in the same way as Article 7:628 DCC (old) (Supreme Court, 3 June 2022, ECLI:NL:HR:2022:823) (Dutch only)
On 1 January 2020, the provisions of Articles 7:627 and 7:628 (1) DCC (old) were consolidated into Article 7:628 (1) DCC (new), pursuant to which an employee retains the right to remuneration even if he did not perform the contracted work, unless the non-performance of the contracted work should not reasonably be for the account of the employer. The amendment does not have the intention of changing the substance of the distribution of risks between employer and employee, or of the Supreme Court case law. Relevant remains that the employee must have be willing (and have expressed this willingness) to perform the contracted work.
Resolution (or absence of such resolution) to appoint a director (Supreme Court, 3 June 2022, ECLI:NL:HR:2022:817) (Dutch only)
81 RO. Attorney General: A resolution to appoint a director under the articles of association does not have to satisfy any requirements of form and its existence may be presumed if no evidence is shown of a formal vote (in a meeting) and the result of this vote has not been recorded. The submission by the shareholder (or shareholders) of a Chamber of Commerce form serving to register a person as a ‘director’ of the company may encompass a resolution to appoint (outside a meeting) or constitute a circumstance contributing to the presumption of the existence of a resolution to appoint. However, such form does not constitute cogent evidence of the existence of a resolution to appoint, because there may simultaneously be facts or circumstances suggesting otherwise.
Payment of transition compensation tied to end date of employment (Central Appeals Tribunal, 1 June 2022, ECLI:NL:CRVB:2022:1180) (Dutch only)
In a situation where an employment contract terminates after 1 July 2015 and the two-year disability period ends before 1 July 2015, entitlement arises to payment of the transition compensation. This compensation then covers the period until the end date of the two-year period within which termination on account of disability is not allowed. Article 7:673e(2) DCC merely places a cap on the amount of the compensation.
Article 9a of the Placement of Personnel by Intermediaries Act (in short: WAADI) may apply to self-employed persons who wish to be given an employment contract of the recipient (Supreme Court, 20 May 2022, ECLI:NL:HR:2022:751) (Dutch only)
The ban on impediments laid down in Article 9a WAADI does not automatically apply if a temping agency seconds a self-employed person to a recipient. It only does if the self-employed person is to be considered an employee within the meaning of the Employment Agency Work Directive (Directive 2008/104/EC) and is protected as such under domestic law.
Restart after bankruptcy (CJEU, 28 April 2022, ECLI:EU:C:2022:321)
A pre-pack can fall under the exception of transfer of an undertaking, if (i) the purpose of the pre-pack is to make liquidation of the assets of the transferor possible, and (ii) the proceedings are supervised by a competent public authority, which conditions are met if the pre-pack was prepared by a ‘prospective insolvency administrator’ supervised by a ‘prospective supervisory judge’. This does require that the pre-pack procedure is provided with a statutory basis in the Netherlands.
Jurisdiction Dutch courts in the event of a request to terminate employment contract of an employee living abroad (within the EU) (Supreme Court, 11 March 2022, ECLI:NL:HR:2022:345) (Dutch only)
The main rule (Article 22(1) Brussels-I bis Regulation) that an employer may bring proceedings only in the courts of the Member State in which the employee is domiciled, notwithstanding Dutch courts may assume jurisdiction to hear and decide on the matter if the employee appears before a Dutch court and the court has verified that the employee has been notified of the right to challenge the court's jurisdiction and of the consequences of appearing or not appearing (duty to verify). The Dutch court must provide clear reasons and state which points of reference it used to conclude that the duty to verify has been satisfied.
Claim industry-wide pension fund falls outside scope of WHOA (Supreme Court 25 February 2022, ECLI:NL:HR:2022:328) (Dutch only)
Pursuant to Article 369(4) of the Dutch Bankruptcy Act, pension rights are terms of employment which are excepted from the private composition offered by the Court Approval of a Private Composition (Prevention of Insolvency) Act (Wet Homologatie Onderhands Akkoord, or “WHOA”).
Reporting ill after filing of application for dismissal does not prevent termination of employment contract (Supreme Court, 18 February 2022, ECLI:NL:HR:2022:276) (Dutch only)
The prohibition against terminating an employment contract while the employee is ill does not stand in the way of the contract being terminated for business management considerations, if the employee reported sick after an application for their dismissal was filed with the UWV and before the application for termination was received by the court.
Seriously culpable conduct of employer and full and final discharge as condition for assisting in termination of dormant employment contract (Supreme Court, 21 January 2022, ECLI:NL:HR:2022:63) (Dutch only)
(i) The assessment of an employee-initiated application for termination of the employment contract must take into consideration all facts and circumstances of the matter, together and in context. This applies likewise to the assessment whether the termination is caused by seriously culpable conduct or failure to act on the part of the employer. Considered together and in context, repeated culpable conduct may constitute seriously culpable conduct.
(ii) An employer's conduct does not testify to good employment practices if he will accept the employee's “Xella” proposal only on condition that the employee grants the employer full and final discharge for any other claims.
Director's liability for pension contributions does not end one year after transfer of undertaking (Supreme Court, 14 January 2022, ECLI:NL:HR:2022:13) (Dutch only)
A director's liability for back pension contributions is a joint and several liability within the meaning of Article 23 of the Sectoral Pension Fund (Obligatory Membership) Act 2000 [Wet verplichte deelneming in een bedrijfstakpensioenfonds 2000] and is not contingent on the liability of the legal entity. It follows that the liability of the director does not end when the legal entity cannot be held liable on the transfer of the undertaking pursuant to Article 7:663 DCC.
Selected policies and legislation issued in the first six months of 2022
No work permit required for Ukrainian refugees (Staatsblad 2022, 130) (Dutch only)
Subject to conditions, since 4 March, Ukrainian refugees willing to work in the Netherlands do not need a work permit for persons from outside the EEA. This transition period may be extended by consecutive periods not exceeding three months. Due to end on 31 May 2022, the first period has already been extended up to and included 31 August 2022 (Staatscourant 31 mei 2022, 14435) (Dutch only).
Legislation and regulations in force from 1 July 2022
Minimum and maximum wages as from 1 July 2022 (Staatscourant 2022,11945) (Dutch only)
The minimum wage for employees 21 years of age and over working a full-time working week is: EUR 1,756.20 per month, EUR 405.30 per week, EUR 81.06 per day and EUR 11.26 per hour for a full-time working week of 36 hours, EUR 10.67 per hour at a full-time working week of 38 hours, and EUR 10.14 at a full-time working week of 40 hours. The central government (Rijksoverheid) has put up a toolon its website to calculate the minimum wage per hour. The maximum wage per day has been set at 232.90. Additional information may be gathered from the calculation rules.
Applications for work permits (TWV) through the employer's portal at UWV from 1 July 2022 (Newsletter UWV) (Dutch only)
From 1 July 2022, it is possible for employers to apply to the UWV for work permits remotely (using eRecognition on the employer's portal).
International tax rules relating to remote working from 1 July 2022 (Staatscourant 2022, 9700, 9701 and Staatscourant 2022 nr. 14656) (Dutch only)
The agreements made (in the wake of the COVID-19 pandemic) between the governments of the Netherlands. Belgium and Germany on the taxation of employed cross-border workers working remotely will not be extended again and will cease to have effect from 1 July 2022. Until this date, days when such workers work from home may be treated as days worked in the country where the cross-border worker would habitually have worked, provided such days are taxed in the other country.
The Dutch government has initiated consultations with neighbouring countries to review whether the increased popularity of remote working may result in a modification of the tax treaties to include new arrangements for cross-border workers, said State Secretary Van Rij for Tax Affairs and the Tax Administration in a response (of 9 June 2022) to questions from MPs. The State Secretary announced that the Minister for Social Affairs and Employment will inform the House of Representatives before summer recess about progress in the consultations with our neighbouring countries and the EU.
International social security agreements re remote working from 1 July 2022
Initially, the EU agreements not to attach any consequences to the changes in working patterns for the applicable social security legislation (resulting from remote working) were due to expire on 1 July 2022. However, the EU Administration for the coordination of social security systems have agreed that for the next six months - until 1 January 2023 - cross-border workers continuing to work from home need not fear that they will switch social security systems. This gives the Member States time to work towards a structural solution of social security issues relating to remote working. Again, the House of Representatives will be briefed of progress and subsequent steps before summer recess.
Report on male/female ratio in executive positions at listed companies from 1 July 2022 (Staatsblad 2022, 182) (Dutch only)
Since 1 January 2022, large companies, whether privately or publicly held, are required to formulate appropriate and ambitious targets for the male/female ratio on their boards, supervisory boards and senior management. Companies are required to report progress to the Social and Economic Council. The Directors’ Report (Contents) Decree (Besluit inhoud bestuursverslag) provides for an obligation to include this information in the companies’ directors’ reports from 1 July 2022.
Legislation and regulations due to come into force between July 2022 and January 2023
Transparent and predictable working conditions - 1 August 2022
The bill for the Transparent and predictable working conditions (Implementation of EU Directive) Act was adopted by the Dutch Senate on 21 June 2022. The key provisions of this Act pertain to mandatory training and compensation of training costs (Article 7:611a DCC), allowing (or disallowing) employment with other employers (Article 7:653a DCC), the disclosure duty (Article 7:655 DCC), the introduction of rules on unpredictable work patterns and a specific disclosure duty (about allowances and compensation of certain expenses in particular) for employees who are seconded to other EU Member States. The Act is intended to have immediate effect from 1 August 2022 - there will be no transitional law.
Paid parental leave - 2 August 2022 (Staatsblad 2021, 592, Staatsblad 2021, 595 en Staatsblad 2022, 174) (Dutch only)
Parents are entitled to unpaid parental leave until their child reaches the age of 8. The maximum leave is 26 times the number of hours in a parent's working week. From 2 August 2022, out of those 26 weeks parents are entitled to paid leave for 9 working weeks in the first year of their child's life, this allowance - at 70% of the maximum per diem wages - to be paid by the UWV. Entitlement to this allowance extends to adoptive and foster children under the age of 8 in the first year of their being part of the family. This leave may be spread out of a longer period of time. Any paid leave not taken in said period may be taken as unpaid parental leave - up to 26 weeks.
Protection of whistleblowers - implementation of Directive - unclear (letter to the House of Representatives of 9 June 2022) (Dutch only)
The bill for the Whistleblowers Protection Act (Wet bescherming klokkenluiders), to implement EU Directive EU 2019/1937 is still being debated by the House of Representatives. The Minister for Internal Affairs has announced a technical briefing before summer recess, a second memorandum of amendment, and a progress report.
Direct effect of Directive in relation to public-sector employers since 17 December 2021
In view of the fact that EU Directives have direct effect on the public sector, the new protection measures do apply to persons reporting breaches perpetrated by public sector employers (national, provincial and municipal authorities, water boards and autonomous administrative authorities under public law). In addition, their internal reporting procedures must comply with the new requirements as from 17 December 2021, the date on which the Directive should have been implemented. These requirements can be found here: Checklist internal reporting procedure (Dutch only).
Enforcing the Assessment of Employment Relationships (Deregulation) Act (“Wet DBA”) (letter to the House of Representatives of 24 June 2022) (Dutch only)
In a joint letter to the House of Representatives, the State Secretary of Finance and the Minister of Social Affairs and Employment communicated to the Members of Parliament that the government has the ambition to lift the enforcement moratorium on 1 January 2025 at the latest. In autumn, another joint letter will follow, also on behalf of the Minister of Economic Affairs and Climate Policy, about ‘working as a self-employed person’, which letter will set out in specific detail when and in what way the enforcement moratorium may be lifted.
Work where you want and hybrid working
This member's bill (submitted in January 2021) would regulate the situation where an employee's request for adaptation of the workstation can only be denied by the employer for material business or service interests. In response to the advice of the Social and Economic Council on hybrid working (which was published on 31 March 2022) the members that introduced the bill substituted the test of material business interests for the test of reasonableness and fairness. Any request by an employee to work from home (within the EU) would have be allowed by the employer if “in view of all circumstances of the case, the employer concludes that the request, taking into consideration all standards of reasonableness and fairness, outweighs the employer's interests”. The first plenary hearing of the amended bill in the House of Representatives took place on 14 June 2022 and it will continue in July 2022. The Agenda for the future of hybrid working (Agenda voor de toekomst van hybride werken) of the Ministry of Social Affairs and Employment and the reply of the Minister of Social Affairs and Employment to this advice of the Social and Economic Council about hybrid working can be found here: Letter to the House of Representatives of 20 June 2022 (Dutch only).
A look ahead at 2023
Statutory minimum wage to be increased in three stages from 2023
The government wants to move up the date for the increase of the statutory minimum wage (by 7.5% in three annual stages), as agreed in the coalition agreement, by one year, to 1 January 2023. The 2023 increase will be effectuated by means of a governmental decree, as a result of which all wage-related benefits and maximum per-diem wages will rise as well. The increases for 2024 and 2025 will require amendment of current legislation. In 2024 and 2025, the wage-related benefits and maximum per-diem wages will not increase.
Travel allowance to be increased in 2023
The increase of the tax-exempt travel allowance will also be moved up by one year. The current allowance, of 19 eurocent per kilometre, will rise to 21 eurocents in 2023, according to the government’s Spring Memorandum.
CO2 emissions commuting and business travel large employers - effective 2023
The Climate Agreement provides that a standard will be imposed on large companies, with 100 employees or more, to lower their carbon emissions generated by commuting and business travel. From 2023, large employers will be required to report on their employees’ commuting and business travel emissions. If they are on course to lowering their emissions, their obligation ends at reporting. If not, they will be obliged – from 2025 – to seek ways for 'smarter and more economical’ means of travel.
Evaluation of rehabilitation report (company doctor's opinion to be guiding) - unclear
From 1 September 2021, the opinion of the company doctor was supposed to be the guiding opinion in the evaluation of the rehabilitation report by the UWV. The aim of this measure is to avoid wage sanctions due to a medical difference of opinion between the company doctor and the UWV’s medical adviser. When the previous government fell, the bill was labelled ‘controversial’ but it was put on the agenda of the House's standing committee for social security again on 16 May 2022. However, the legislative consultations have been suspended until further notice.
Compensation of transition allowances paid on cessation of business due to illness not in 2022
Since 1 January 2021, small employers (fewer than 25 employees) are eligible for compensation of transition allowances paid on cessation of business due to the employer's retirement or death. The option to allow compensation in the event of cessation of business due to the employer's illness has been moved backwards again. This regulation will not be implemented in 2022, according to the Ministry of Social Affairs and Employment's amended budget statement.
Abridgement continued payment of wages to ill old-age pensioner s (‘OAP's’) to 6 weeks from 13 weeks deferred until 1 July 2023
The abridgement of the obligation to continue to pay wages to ill OAPs has been deferred until 1 July 2023, as is clear from the draft Collective (Social Affairs and Employment) Act 2023 (Verzamelwet SZW 2023). OAPs who are ill on that date will be covered by the longer period of 13 weeks. This also applies when two periods of illness succeed each other with an interval of less than four weeks, with the second period commencing after 1 July 2023.
Right to inaccessibility - unclear
In July 2020, the member's bill to amend the Working Conditions Act (Arbeidsomstandighedenwet, or “Arbowet”) to allow for employers and employees to discuss the right to be unavailable to perform work outside working hours (the Entitlement to Inaccessibility Act) was introduced in the House of Representatives. On 16 March 2022, MP Kathmann informed the President of the House of Representatives that she would defend the bill instead of the member who originally introduced it (Gijs van Dijk). There have been no other developments over the past six months, and the bill still awaits a debate in the House.