Global Mobility & Payroll 23 April, 2023

Does your Dutch employee resign? Ask if they are sure… 

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Crowe Peak/ Knowledge Hub/ Global Mobility & Payroll/

Does your Dutch employee resign? Ask if they are sure… 

The legal protection of Dutch employees reaches so far that even when an employee decides to resign voluntarily, their employer is not always absolved of its legal obligations. Under Dutch law, such employer must make sure that the employee in question is sure of their choice, whether they are not having second thoughts and whether they realize what rights they relinquish by voluntarily resigning. In a judgment regarding a voluntary resignation by a Dutch employee, the Dutch Supreme Court once again showed that employers of Dutch employees have many obligations, even if employees decide to leave by themselves. In this article, we highlight the most important things to be aware of when you come across a case of (apparent) voluntary resignation in the Netherlands.  

Voluntary resignation 

In the Netherlands, voluntary resignation can have enormous legal consequences for a(n) (former) employee. Especially when compared to a situation in which that employee would have been dismissed by their employer. Therefore, the validity of voluntary resignation is bound to strict regulations. This means that employers in the Netherlands better could not simply assume upon the receipt of a letter of resignation that the employment contract at hand has ended. Before they can do so, they must be convinced that the statement received actually aims to terminate the employment contract. In that context, they also must make sure that the employee in question understands what rights they forfeit by voluntarily resigning. In other words, it is the employer’s obligation to make sure that the employee is aware of what they are doing by handing out their letter of resignation.  

Legal implications to watch out for 

This obligation goes so far that an employer, under specific circumstances, may actually have a legal duty to investigate the situation further. Established Dutch case law states that whether, and to what extent, this is the case depends on the specific circumstances of the resignation at hand. Circumstances that may be significant include:  

  • The content of the statement made;  
  • The mental condition of the employee at the time the statement was made (in case of an illness the employer’s duty to investigate will be more extensive); 
  • The job title and (legal) expertise of the employee (these determine, among other things, the extent to which the employee could have foreseen the consequences of their resignation); 
  • Whether or not the employee complied with the notice period; 
  • The employee’s actions after the resignation; 
  • Whether or not the employer gave the employee time to reconsider the resignation; and 
  • Whether or not the employer warned the employee about the consequences of the resignation. 
    Wondering if your organization is required to investigate the intent of an employee’s resignation in a specific case? Contact our specialists.  

Special circumstances: The employee that resigns acted under the influence of a (mental) “disorder” 

A particular issue to consider in a case of voluntary dismissal is whether the employee in question could have acted under the influence of a (temporary) mental disorder. If this is the case, his will to resign would legally be deemed to be lacking. Under Dutch law, this would make the resignation voidable. This means that the employee could claim at a later stage that the actual termination of the employment agreement was invalid, and that the employment agreement still exists. It is important to note here that a temporary mental disorder in such a case may already be considered to exist when the employee in question was drunk or was acting under the influence of strong emotions.  

Legitimate expectations in cases of voluntary resignation

A possible remedy for such situations is when an employer can rely on the fact that it had a legitimate expectation at the time of the resignation that the employee’s actual will was consistent with the statement they made. The extent to which such argument will be accepted by a Dutch court is very dependent on the facts of the individual case and the circumstances around the resignation. This issue is frequently litigated in the Netherlands. 

In a recent case the Dutch Supreme Court emphasized once more that in such situations all aspects of the case at hand are relevant. To illustrate this, we discuss the judgment in question in a bit more detail below.  

The TÜV case  

The case at hand was a case against international tech concern TÜV that was decided upon by the Dutch Supreme Court late 2021. TÜV was sued by the widow of an employee who had terminated his employment relationship with TÜV. The employee in question had been employed by TÜV since 2005 and had been struggling with mental health issues since 2011. In September 2012, the employee terminated his employment by means of a resignation letter. Sadly, the employee committed suicide a few months after that.  

Because the employee was no longer employed by TÜV at the time of his passing, his widow and son were no longer entitled to so-called partner and orphan pension benefits. They would have been entitled to these benefits if their partner/father passed away while he still was employed by TÜV.  

In this context, the widow claimed damages from TÜV because she believed that her partner lacked the will to resign at the time that the employment contract was terminated. To that end, she argued that TÜV had failed to investigate whether her partner had an unequivocal will to terminate his employment relationship with TÜV. In her reasoning in this regard, emphasis was laid on the fact that her husband was experiencing mental problems at the time of his resignation and that he was having problems with some colleagues for some time.  

The Supreme Court  

In this situation, the Dutch Supreme Court confirmed the previous judgments by lower courts that stated that in this case there was no ground for payment of damages. The Supreme Court judged in this way, because it considered it insufficiently plausible that additional investigation by TÜV would have shown in this situation that the actual will to resign was lacking. The Supreme Court took into consideration all the facts/circumstances that played a role in this case. In this case the employee sent the resignation letter months after his last treatment at a psychiatric clinic, he took the notice period into account and there were no discussions about the final payments / salary slip. 

The Supreme Court deemed it insufficiently plausible that additional research by TÜV in this case would have led to a situation in which the employment contract would not have been terminated. In other words, in this situation, the investigation was not considered relevant enough to the outcome of the case. However, this is not the same as saying there is no duty to investigate for employers at all. The significance of this case for Dutch employment law is that the Supreme Court once again emphasizes that in these types of situations, all the circumstances of the case are relevant.  

Do not assume the validity of voluntary resignation in the Netherlands 

The above shows the extent of employers’ obligations in the Netherlands. Even in cases of voluntary resignation. Moreover, it shows how complex the legal reality of Dutch employment law is. It is therefore of utmost importance for employers operating in the Netherlands that every dismissal is handled with care. Crowe Peak’s specialists are happy to assist in standardizing your organization’s processes in this regard. In addition, they are keen to help in specific situations. Want to know more? Please contact us.  

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