Category: Weblog

‘Getting started’: what the coalition agreement means for employees and employers

Posted on by Iris Taling

On 30 January, the D66, CDA and VVD parties presented their coalition agreement entitled ‘Getting started’. It is ambitious and many of the plans will affect employers and employees. But what does this mean in concrete terms? In this blog, we list a number of measures.

Unemployment benefit reduced to one year

The maximum duration of unemployment benefit will be reduced to one year. Initially, the benefit will be slightly higher. The idea behind this change is to give workers more financial security and peace of mind so that they can find new work quickly.

Introduction of the Self-Employed Persons Act

The Vbar Act will largely be phased out. Only the legal presumption of the Vbar will be introduced: if you earn less than €38 per hour as a self-employed person, you have an employment contract. The client can prove the contrary.

The rest of the Vbar will be replaced by the Self-Employed Persons Act. This will be introduced in phases. The government will start by introducing the review committee and the sectoral legal presumptions. The review committee can give binding advice in advance to self-employed persons and clients. Is there an employment contract or a contract for services? In sectors such as construction or cleaning, sectoral legal presumptions apply: here, workers are considered employees by default, unless the employer can prove that they are contractors.

Adjustment of transition allowance

The transition allowance will be adjusted to what it is actually intended for: the transition from one job to another. The allowance will be linked to an LLO infrastructure, which stands for Lifelong Development. Employers who invest sufficiently and in a timely manner in further training, retraining or reintegration of sick employees will have to pay less or no transition allowance. The compensation scheme for employees who have been ill for more than two years will be abolished. This will apply to all employers.

Abolition of IVA benefit

The IVA benefit, intended for people who are completely incapacitated for work, will be abolished. This would make the work of the UWV easier, as they would no longer have to assess whether someone remains permanently incapacitated for work. The WIA system will also be overhauled as a result.

Faster increase in state pension age

Average life expectancy continues to rise, and with it the state pension age. Currently, the state pension age is increased by eight months for every year that we live longer. The government now wants the state pension age to rise in line with life expectancy. Every year that we live longer means that we have to work a year longer.

Disability insurance for the self-employed

The government wants all self-employed people to be compulsorily insured against disability. Those who already have their own insurance can opt out.

Asylum seekers into work faster

Asylum seekers with a high chance of being granted a residence permit will be allowed to work after three months instead of six. The administrative burden will be reduced and an alternative to the work permit will be introduced.

Do you have any questions about these measures? Please feel free to contact us!

From Eye Infection to Full Disability: What Must Job Applicants Disclose?

Posted on by Charlotte Urlus

An employee reported sick several times due to various complaints. He was examined by a rheumatologist, but no clear diagnosis could be made. He was then referred to a rehabilitation physician, who conducted a screening but did not initiate a rehabilitation program. According to the company doctor, there was a suspicion of a condition that caused complaints during physical strain. As a result, a return to physically demanding work was highly uncertain.

About two months later, the employee resigned from his employment contract. After a short stint as a site supervisor, he started a new job as a mechanic on 1 May 2022. During the recruitment process, he did not disclose any health issues. The Employee did have a visible eye infection at the time of hiring. In November 2022, he reported sick again. It was later determined that he suffers from a rare condition (sarcoidosis), which has left him fully unfit for work.

The employer argued that the employee had withheld relevant medical information during the hiring process. According to her, he should have informed them that his health would severely and long-term impact his ability to perform the job. Had the employer known, they would never have entered into the contract. Therefore the Employer sought to annul the employment agreement and demanded a partial refund of the wages already paid.

The District Court’s Decision

The employee challenged this in court (ECLI:NL:RBNHO:2024:2217). He requests confirmation that the contract was wrongly terminated and that it remained in effect, including entitlement to wages. It was ruled by the district court that there was insufficient evidence that the employee should have disclosed his health condition beforehand. Therefore the employment contract remained valid, and the employer was ordered to pay the outstanding wages plus the statutory 20% increase.

The employer appealed the decision (ECLI:NL:GHAMS:2025:3303).

Employer Claims Nondisclosure of Health Issues

To support her claim, the employer received and submitted a problem analysis from the company doctor from the employee’s previous employment. The analysis shows that at that time the employee was completely unfit for work and had no usable capacity to perform any tasks. It also states that returning to physically demanding work would not have been possible. According to the employer, this makes it incomprehensible that the employee shortly thereafter applied for a physically more demanding position.

What Really Happened?

The court clarified that extrajudicial annulment of an employment contract is not excluded under Dutch labor law (ECLI:NL:HR:2020:213). An employee must inform the employer if, at the time the contract was concluded, they knew or should have known that their health would significantly and persistently affect their ability to perform the agreed work. The statutory dismissal system does not prevent this. It is specifically intended to address cases in which an employee commits fraud when entering into an employment contract.

The key question was whether the employee knew or should have known at the time of hiring, that his health would severely and long-term restrict him. The court concluded that this could not be inferred from the circumstances.

Until his sick leave on 8 November 2022, the employee performed physically demanding work and functioned well. This shows that he was able to carry out his job for over nine months without any health-related problems.

Moreover, it was not established that he was undergoing a long-term medical investigation at the time of hiring that he should have disclosed. Around and after the start of his employment, he was examined by an ophthalmologist for an eye infection. This did not mean that he knew, or should have known, that the condition would have a long-term impact on his work. Additionally, the employer was aware of the eye infection from the outset.

Employee Receives Wages Plus 50% Statutory Increase

The court concludes that the employer has not sufficiently shown that the employee had a duty to disclose his health situation. There is no convincing evidence that, at the time the contract was concluded, the employee knew or should have known that his health would cause significant and long-term limitations. The plea of mistake therefore fails. The employment contract remains in force, the employer must pay the outstanding.

Reorganization or Excuse? Court Reprimands Shareholder

Posted on by Charlotte Urlus

After more than thirty years with the company, sixteen of which as a statutory director, the director in this case was suddenly confronted with his dismissal. On 27 February 2025, he was invited to a shareholders’ meeting where his dismissal was already on the agenda. The shareholder argued that the company had been loss-making for years and that further integration within the group was necessary. Furthermore, they claimed there was insufficient confidence that the director could lead this process. The decision followed quickly: dismissal as director, immediate suspension, and termination of the employment contract.

The director did not accept this and went to court (ECLI:NL:RBMNE:2025:7137). He argued that there was no reasonable ground for dismissal and that the employer had acted in a seriously culpable manner.

The special position of a statutory director

A statutory director holds a unique position. Their dismissal must be assessed in the context of corporate law. The principle is that a legally valid dismissal from the corporate position automatically terminates the employment contract. This follows from the so-called 15 April judgments.

Unlike ordinary employees, the employment dismissal of a statutory director cannot be reversed. The reason for this is that the competent body (in this case, the general meeting of shareholders) must be able to dismiss the director at any time, and that it is not for the authorities or the courts to intervene in this.

Nevertheless, statutory directors do enjoy important employment protections. Under Article 7:682(3) of the Dutch Civil Code, an employment contract can only be terminated on the basis of a reasonable dismissal ground. If no such ground exists, the court can award a fair compensation.

No sufficient business reason for dismissal

To substantiate the alleged business-economic necessity, the company relied solely on a profit and loss statement up to August 2025. This statement showed a loss of just over €38,000, while a significant amount of €406,812 was recorded as administrative expenses, even though a much lower amount (€272,812) had been budgeted. The company explained that this difference could be attributed to the costs of the dismissal. This demonstrates that, up to August 2025, there was no loss-making situation even without the dismissal. Moreover, the company did not submit any financial forecast. The court therefore held that it had not been sufficiently substantiated that, at the time the dismissal decision was taken, the financial situation was so poor that the position had to be eliminated with immediate effect.

Inconsistent and varying reasons for dismissal

The dismissal reasons communicated on 11 March 2025 did not correspond with the explanations given later during the proceedings. During the proceedings, the dismissal was subsequently presented as purely business-economic. Even though earlier it had been stated that the director was insufficiently capable of leading the integration. A statutory director must know in advance the grounds for dismissal in order to exercise their right to be heard and to advise; dismissal reasons may not be amended or supplemented afterward. The court ruled that the dismissal was therefore not purely business-economic. The inconsistencies and the absence of a carefully prepared reorganization plan made clear that the dismissal had not been handled with due care. It was concluded that a business-economic reason had been constructed after the fact. This because the shareholder preferred someone else in the top position, and qualified this as seriously culpable conduct.

The manner in which the dismissal was carried out was also problematic. The director was not informed in advance of the shareholder’s changed vision or of the potential consequences for his position and was completely taken by surprise by the dismissal. Only very limited dismissal reasons were provided, without further explanation, and these reasons later changed. In addition, he was suddenly removed from the organization and immediately suspended, even though his duties had not ceased. This was unnecessarily damaging and disproportionate.

The financial aftermath

When determining the fair compensation, the court considered the director’s long service, age, and position in the labor market. It was deemed likely that the director would find other work within two years, but probably at a lower salary.

Income loss over this period, together with a limited pension loss, resulted in a gross compensation of €222,000. The employer was also ordered to pay part of the extrajudicial and court costs.

What does this statement teach?

This case demonstrates that careful handling is essential when dismissing a statutory director. A reorganization must be well thought out and substantiated in advance, dismissal reasons must be clear and consistent, and the director must be able to exercise their rights to be heard and to advise.

For directors, this case shows the value of critically reviewing a dismissal. Even though reinstatement of the employment contract is not possible, fair compensation can still address the way the dismissal was carried out.

The legal position of the management board and supervisory board in the share transaction in bankruptcy

Posted on by Michelle Sangers

As part of the Blog series: the legal positions of the corporate bodies of the private limited company in financial dire straits, in this blog we address the legal position of the management board and supervisory board in the share transaction in bankruptcy.

No or minor role for the management and supervisory boards

In the restart structure of the share transaction in bankruptcy, one or more sitting shareholders sell their shares by agreement to the intended, purchasing shareholder(s). This is often accompanied by a capital injection by the buyer and/or a bankruptcy agreement to restructure the company’s debts.

Because the share transaction takes place at shareholder level and not company level, in principle, the management board does not have any powers other than perhaps recognising the share transfer on behalf of the company. Because the management board plays only a minor role, the role of the supervisory board is also minor: supervision and possibly assisting the management board with advice therefore remains limited. Private companies may find it disadvantageous that their boards cannot directly influence a share transaction, as they will not have control over who becomes the owner of the company.

Obligation to offer the shares

Nevertheless, it is possible that the board at the time of incorporation of the company exerts a certain influence on a later share transaction. If the management board has failed to deviate from Section 2:195 of the Civil Code at the company’s incorporation or has explicitly – whether at a later stage or not – laid down an offering arrangement, the shareholder is restricted in his transfer options. The offering arrangement obliges the shareholder to offer the shares to his co-shareholders first in a share transaction, in proportion to the number of shares they hold at the time of the offer. These co-shareholders can only claim shares of the kind they are already going to hold at the time of the offer. The board can thus indirectly influence subsequent share transactions, subject to subsequent amendments to the articles of association by the shareholders’ meeting.

While it is desirable for private limited companies to keep the shares within the closed circle, in bankruptcy the board may be forced to look outside this circle. Should the board be willing to do so, the board can order a shareholders’ meeting at which a vote will be held on the proposed decision to drop the offering arrangement. The board can then use its advisory vote to advise shareholders to vote in favour of lifting the offering scheme. If shareholders do not agree to such an amendment to the articles of association, the board can go to court and the court can rule that reasonableness and fairness require the shareholder to set aside its own interest. However, lifting an offering arrangement by amending the articles of association or filing an application with the court costs money that is usually not available in a bankruptcy situation. So this is something to think carefully about when drafting the deed of incorporation or an amendment to the articles of association.

Are you involved in an insolvent or bankrupt company and do you want to know what your options are? Or would you like advice on setting up a company, a share transaction (whether or not in connection with a shareholder dispute) or amending the company’s articles of association? If so, please feel free to contact us. We will be happy to advise you.

The legal status of the management board and supervisory board in the pre-pack

Posted on by Michelle Sangers

The board

It is the board’s job to identify financial difficulties, administer them and anticipate them. If directors fail to do so, the company can accuse them of mismanagement. When bankruptcy is imminent, the management board has the task of submitting a request to the court for the appointment of a prospective administrator if that seems useful: in the request, the management board must make it plausible that the pre-pack offers added value for the company. This means that the pre-pack is expected to limit social damage, create the highest possible value for the joint creditors and preserve employment as much as possible. The management board informs the shareholders’ meeting prior to the request, unless an overriding interest of the company opposes this. The management board shall also provide the supervisory board with all information required for the performance of its duties in a timely manner. In the case of a structured BV (structuur-BV), moreover, the management board’s decision to request the appointment of a prospective administrator under the Continuity of Enterprises Act I will be subject to the prior approval of the supervisory board.

After the appointment of the prospective administrator, the silent preparation phase begins. This usually lasts 11 to 15 days. During this period, the board retains its powers as described in this blog and its information duties as mentioned above. In addition, under the Continuity of Enterprises Act I, the management board has the duty to provide the prospective administrator, both on request and on its own initiative, with any information which it needs to perform its duties or which it knows or should understand to be important in that context. If the management board fails to do so, this may impede the prospective administrator in the performance of his duties and, consequently, the pre-pack. Directors risk mismanagement resulting in possible liability. In the worst case, the prospective administrator may even apply to the court to be relieved of his duties.

The supervisory board

In the pre-pack, the supervisory board retains its powers as described in this blog, but is not given any additional powers in relation to the pre-pack or the intended receiver. However, the supervisory board does have to take a more active stance from the moment it becomes aware of the financial difficulties. This follows, among other things, from the Laurus decision in which the Enterprise Chamber ruled that the supervisory board should have asked more critical questions and acted more quickly when insufficient information was provided by the management board. The legislator has also confirmed that such action may be required of the supervisory board. For instance, under the Continuity of Enterprises Act I, the supervisory board itself can also apply to the court for a prospective administrator.

Exciting times: Wieringa helps

In practice, the appointment of a prospective administrator may be perceived as exciting by directors: the prospective administrator is watching the directors as they continue to operate the company and enter into any new obligations such as purchase and delivery obligations. If the company goes bankrupt, the receiver (who was first intended receiver) will presumably investigate whether the director is liable, for example because he entered into obligations he knew or should have known the company would not be able to fulfil.

As a director, it is therefore advisable – if only for your own peace of mind and comfort – to consult a lawyer who can look at things with you from a legal perspective and advise you. After all, this is not the task of the intended receiver as described in this blog. Even as a supervisory director, you may need guidance and advice on your role if the company finds itself in dire financial straits. Please feel free to contact us without obligation to discuss the possibilities.

AI and employment law

Posted on by Iris Taling

Artificial intelligence (AI) has become an integral part of the workplace. From scanning CVs to assessing performance and even making decisions about dismissal, AI is playing an increasingly important role. The European AI Regulation has been in force since 1 August 2025 and will come into force in stages. The first rules have been in force in the Netherlands since 2 February 2025. Moreover, the entire regulation must be implemented in the Netherlands legislation by 2 August 2027. This AI Regulation also has consequences for employment law. In this blog, we explain what this means for employers and what you need to bear in mind.

The core of the AI Regulation

The AI Regulation classifies AI systems based on risk. Therefor, the higher the risk of an AI system, the stricter the rules. There are three categories:

  1. Unacceptable risk: These systems will be banned from 2 February 2025. This concerns AI that can manipulate, discriminate against or otherwise harm people.
  2. High risk: Strict rules apply to these systems because they affect the safety and fundamental rights of people affected by the system, such as job applicants and employees. The obligations will apply from August 2026.
  3. Limited or minimal risk: This mainly concerns transparency. Users must be aware that they are dealing with AI. These rules will also apply from August 2026.

AI systems in the workplace

In labour law, the focus is mainly on high-risk AI systems. These systems support or make decisions that can have a major impact on career opportunities, income and equal treatment. Errors or biases in these systems can lead to unequal opportunities, discrimination or other forms of harm to those involved. It is therefore essential that strict rules apply to such AI systems.

The AI Regulation mentions the following systems:

  • AI systems for recruitment, selection and personnel management. Examples include tools that analyse CVs, screen job applications or assess candidates during tests.
  • AI systems that make decisions about promotions, performance reviews or even dismissal.

What does this mean for employers?

Employers have obligations when it comes to high-risk AI systems. Employers must exercise extra care. This means, among other things:

  • Working according to the instructions: Employers must take appropriate technical and organisational measures to ensure that AI is used in accordance with the instructions accompanying the systems.
  • Human supervision: There must be persons within the organisation who have the necessary skills, training and authority. This means that persons within the organisation must be trained to assess the risks of the AI system. If there is a risk, they must be able to assess when an AI system should be stopped or when a report should be made.
  • Keeping log files: The use of AI systems must be recorded. This includes who uses it, when and for what purpose.

Non-compliance with the AI Regulation can be costly for employers. Violation of the obligations can lead to high fines and legal proceedings. Consider, for example, a situation in which a job applicant disagrees with the rejection on the grounds of discrimination.

Role of the works council

The AI Regulation also assigns a clear role to the works council (WC). According to the Regulation, employee representatives and employees have a right to information. This right to information relates to the application of a high-risk AI system before it is used in the workplace. In addition, the Works Councils Act (WOR) also provides for information rights and even advisory rights for the works council. This right to be consulted often comes into play as soon as the employer intends to implement an AI system, allowing the works council to contribute ideas and advice at an early stage.

Conclusion

AI offers opportunities, but also entails risks for employers. The AI Regulation requires employers to exercise greater care. In practice, we have noticed that working with AI systems in the workplace often raises questions or can cause discussion. Are you unsure whether your AI systems comply with the rules, or would you like to know how to use high-risk AI systems safely? Please feel free to contact us. We are happy to assist you.

In the next blog, we will discuss the impact of AI on dismissal law.

Employers take note: these are the major employment law changes in 2026

Posted on by Annemarie Buwalda

What will change for employers in 2026? We have listed the main changes and legislative proposals in this blog.

Changes in 2026

Minimum wage up

Like every year, the minimum wage is also rising this year. For employee aged 21 and above, a minimum wage of €14.71 per hour will apply from 1 January 2026. From 1 July 2025, it was €14.40 per hour. The new minimum hourly wage for employees aged 20 or younger can be found on the central government website.

Home working and travel allowance up

The maximum untaxed allowance for employees working from home will increase from €2.40 to €2.45 per day from 1 January 2026. The maximum untaxed travel allowance remains €0.23 per kilometre in 2026, as in 2025.

General remuneration cap raised (Top Income Standardisation Act)

The general remuneration ceiling within the meaning of the Wet normering topinkomens ( WNT) will also go up again next year. This act sets limits to the maximum remuneration of top officials in the (semi)public sector. For 2025, the maximum remuneration was set at €246,000. For 2026, the general remuneration maximum has been set at €262,000.

Free space working costs scheme remains the same

The WKR’s free allowance will remain at 2% in 2026. In 2027, the percentage will rise to 2.16%. This applies to the wage bill up to €400,000. For the wage bill above that, a percentage of 1.18% will apply.

Legislative proposals in 2026

Furthermore, a number of bills are on the way. These laws are not yet finalised, but are expected to come into force in 2026.

Bill to limit compensation scheme for transitional allowance in case of long-term illness

Since 1 April 2020, employers have been able to receive compensation for transitional compensation in case of dismissal due to long-term disability. This bill stipulates that from 1 July 2026, this compensation scheme will be limited to small employers (fewer than 25 employees). Employers with 25 or more employees will thus no longer be able to receive compensation for the transition allowance when an employee leaves employment after two years of illness from 1 July 2026. However, the Council of State is critical and advises that the bill should only be introduced if the full transition compensation in the second year of illness is scrapped.

Bill Clarifying assessment of labour relations and legal presumption (VBAR)

The VBAR Act replaces the DBA Act and aims to clarify the distinction between employees and self-employed persons, thereby reducing false self-employment. This new law introduces an assessment framework of the authority criterion to assess whether an employment contract exists. The VBAR Decree fleshes out this assessment framework. The Bill was submitted to the House of Representatives on 7 July 2025 and the Decree was submitted for internet consultation on 12 September. The entry into force of the Act and the Decree is expected to take place on 1 July 2026.

The legal position of the management and supervisory board under WHOA

Posted on by Michelle Sangers

What does the board do?

The board may offer an agreement

Under the WHOA, the board may offer an agreement to (some) creditors if it is reasonably likely that the company will not be able to continue paying its debts. The arrangement provides for a change in the rights of creditors and shareholders (e.g. amendment or termination of an agreement) and can be declared binding (homologated) by the court. The board does not need the consent of the general meeting for the offer, submission for homologation and execution of an agreement. This prevents, as far as possible, shareholders from obstructing the process by exercising their shareholder rights.

The board may request a cooling-off period, an observer or restructuring expert

To prepare the arrangement in relative calm for presentation to creditors, the board can ask the court to declare a cooling-off period. This is a period of up to four months during which creditors may not recover from the company. This period can be extended, provided that the total period including extensions cannot exceed eight months.

When declaring a cooling-off period, the court may appoint an observer to supervise the establishment of the arrangement, with an eye to the joint creditors. The observer informs the court as soon as it becomes clear that it will not succeed in bringing about an agreement or if the interests of the joint creditors are harmed.

If the board does not want to prepare an agreement itself, it can apply to the court through a lawyer to appoint a restructuring expert.

The directors have a duty towards both the restructuring expert and the observer to provide all information, in particular about facts and circumstances which they know or ought to know are important to the observer or restructuring expert for the proper performance of his task. Directors shall also provide the necessary cooperation to the observer/restructuring expert.

What does the supervisory board do?

Aim for an agreement

If it is reasonably plausible that the company will not be able to continue paying its debts, the existing powers of the supervisory board intensify. If continuation is no longer possible, the supervisory board should push for a plan for reorganisation, restructuring or liquidation, for example under the WHOA.

Supervision and advice

If the management board offers a composition to the creditors, the supervisory board may be expected to have critically and proactively analysed the composition and to assist the management board with advice, if necessary by bringing in its own advisers (e.g. lawyers) to form an opinion on the agreement to be offered.

If the management board wants to request an observer or restructuring expert, it is up to the management board to discuss this with the supervisory board. If the court subsequently appoints an observer or restructuring expert, the supervisory board members must provide it with all information, especially about facts and circumstances which they know or should know are important for the proper performance of the observer’s or restructuring expert’s duties.

In principle, the statutory and statutory powers of the supervisory board must still be respected in the event of an agreement under the WHOA. Directors who fail, for example, to ask the supervisory board for required approval run the risk of being held liable if the company suffers losses as a result. Thus, the provisions of the articles of association that make the management board’s decision to offer an agreement subject to the approval of the supervisory board should in principle be followed.

Are you a director or commissioner and want advice on your role in WHOA? Feel free to contact us. We will be happy to advise you.

New approval requirement and stricter rules for temporary employment and staffing agencies from 1 January 2027

Posted on by Guido Brandt

From 1 January 2027, the rules for hiring out personnel in the Netherlands will change. With the introduction of an admission requirement for suppliers in the Provision of Personnel Admission Act (Wet toelating terbeschikkingstelling van arbeidskrachten (Wtta)), the government wants to increase the quality and reliability of the temporary employment sector, tackle abuses and improve the protection of flex workers. What are the main changes and what does this mean in practice?

Admission duty

From 2027, only certified companie will be allowed to supply workers. This means that every supplier must be in possession of a licence or provisional licence. The conditions for this licence are:

  • Registration in the trade register. This is already mandatory.
  • Submission of a recent Certificate of Conduct (VOG).
  • Payment of a deposit of €100,000 on admission and €50,000 on provisional admission, unless there is an exception.
  • Demonstrable compliance with a framework of standards, consisting of requirements in the areas of labour law, social security and taxation.

The deposit is not required for companies that have been continuously registered in the commercial register for the four years prior to 1 January 2027 with the registration of providing workers as their business activity, demonstrably provided workers in that period and that submit a statement from the Tax and Customs Administration, no older than three months at the time of application, showing that the taxes and contributions due have been paid. Furthermore, a general exemption from the license requirement is possible under certain circumstances for employers who provide workers on a limited basis.

The new body the Dutch Lending Market Authority (NAU) will decide, among other things, on authorisations and exemptions.

Housing and registration

The Wtta further regulates that housing for labour migrants may only be offered by certified or authorised landlords. In addition, suppliers must check whether workers made available are registered in the Basic Registration of Persons and inform them of this obligation.

What does this mean in practice?
The Wtta will come into force on 1 January 2027, but suppliers must register with the NAU before that date if they want to continue supplying workers. Unauthorised suppliers and hirers who use unauthorised suppliers may be fined. The Netherlands Labour Inspectorate will start enforcing this from 1 January 2028.

Want to know what these new obligations mean for your organisation? Feel free to contact us if you need advice or guidance following these changes. We will be happy to help.

Employer Acted Incorrectly in Dismissing Employee Who Showed Up to Work Drunk

Posted on by Charlotte Urlus

In September 2024, an employer decided enough was enough. An employee had once again shown up to work under the influence of alcohol — and it wasn’t the first time. The signs were clear: the smell of alcohol, arriving late, calling in sick at critical moments, and complaints from colleagues. Despite previous conversations, warnings, and even a support program funded by the employer, the behavior persisted. When it became evident that the employee had consumed alcohol before his shift and was intoxicated at work, the employer took action and dismissed him on the spot.

The employee disagreed with the summary dismissal and took the matter to the subdistrict court. The court ruled in favor of the employer, stating the dismissal was legally valid. However, the employee appealed to the Court of Appeal (ECLI:NL:GHARL:2025:6166), arguing the dismissal was unjust and that he should be reinstated. The Court of Appeal sided with the employee.

Employer didn’t know, but alcohol addiction played a role anyway

When assessing whether there is an urgent reason for dismissal, the employee’s personal circumstances must be considered — including illness. In this case, the employee stated that he was suffering from alcohol addiction at the time of dismissal. Although the employer was unaware of this, the Court held that all relevant circumstances must be taken into account, even those unknown to the employer at the time.

The Court found sufficient evidence that the employee was indeed struggling with alcohol addiction, which qualifies as an illness. He had sought help before the dismissal and was admitted for intensive treatment shortly afterward. The Dutch Employee Insurance Agency (UWV) also confirmed that the employee was unfit for work at the time of dismissal.

Moreover, the Court noted that the employer likely knew more than it claimed. In a prior conversation, the employer had acknowledged that alcohol was not a solution to the employee’s problems. The incidents — such as consistently arriving late, smelling of alcohol, and a deteriorating appearance — closely matched the characteristics of addiction as described in the STECR guideline “Addiction and Work.”

Although the legal prohibition on dismissal during illness generally does not apply to summary dismissal, illness remains a significant factor that must be considered when determining whether there is an urgent reason for dismissal.

Because addiction is often denied, employers need to be extra vigilant

The Court ruled that the employer should have suspected that more was going on than a one-off alcohol issue. Therefore, a higher level of care was expected. While the Court acknowledged the employer’s efforts and intentions to act responsibly, it concluded that the employer should have been more critical.

The Court dismissed the argument that the employee should have disclosed his addiction. It is widely known that individuals with alcohol problems often deny their condition, do not perceive it as problematic, and feel ashamed to talk about it. The employee also indicated that he felt pressured to return to work fully, especially since the employer had made it clear that its patience and efforts were not unlimited — and that it expected results in return.

The Court concluded that the employee’s behavior on September 16, 2024, was a result of illness. This means the legal prohibition on dismissal during illness applied to the termination of the employment contract. While this prohibition does not typically apply to summary dismissal, illness is still a relevant factor that must be considered when assessing whether the dismissal was justified.

The Court ruled that the summary dismissal must be annulled andthe employment contract was reinstated as of September 19, 2024. The employer is required to pay the employee’s salary from that date, including statutory increases and interest. Since the employee is ill, he does not need to return to work immediately. The employer must howevere actively support a careful reintegration process.

What can you learn from this?

The law imposes strict requirements for the validity of summary dismissal. The consequences for the employee are severe. There is animmediate loss of employment, and typically no entitlement to salary, transition compensation, or unemployment benefits. That’s why it’s crucial for employers to carefully assess whether summary dismissal is truly appropriate. Extra vigilance is required in cases involving alcohol-related issues.

In a previous blog (“Judged Too Quickly: How a Suspected Theft Cost the Employer Dearly – Wieringa Advocaten“), we already emphasized the importance of seeking proper legal advice. An unjustified summary dismissal can have serious consequences.

Feel free to contact us. We’re happy to help you determine the right approach for your situation.