Category: Weblog

Under Section 25 of the Works Councils Act (WOR), the works council has the right to advise on important decisions made by the employer. These include reorganisations, mergers or acquisitions.

As an entrepreneur, you want clarity quickly. However, it can happen that the advice from the works council is a long time coming. How long can this take? And when can the entrepreneur proceed with their decision?

The deadline for giving advice

The law does not specify a fixed deadline within which the works council must give advice. However, the works council and the entrepreneur can agree on this together. The legislative history shows that the works council must give advice within a “reasonable period”.

What constitutes a reasonable period depends on the circumstances of the case. The following factors, among others, play a role in this:

• the moment at which the works council received all the necessary information;
• the complexity of the decision;
• any external pressure, such as in the case of a bidding or tendering procedure.

The entrepreneur may also ask the works council to give its advice before a certain date. If the works council considers this period to be too short, or if it needs additional information, it must report this in good time and request a postponement. If the works council agrees to the proposed date, the entrepreneur may hold the works council to it.

What if the works council is late?

If the works council does not respond within the given deadline, this may have consequences. For example, the works council may not be able to appeal against the entrepreneur’s decision if it has not issued its advice in time. An entrepreneur may implement his decision if the works council knew that there was urgency but did not request a postponement.

Important to know: no advice is not automatically negative advice. The Zwolle-Lelystad District Court (ECLI:NL:RBZLY:2005:AU7236) ruled that if the works council deliberately does not issue any advice, Articles 25(5) and (6) of the WOR do not apply. In that case, the entrepreneur does not have to wait a month to implement his decision.

Limits to a reasonable period

The Amsterdam Court of Appeal (ECLI:NL:GHAMS:2012:BW0499) emphasized that the works council itself is responsible for requesting information in good time. If the works council fails to do so in time, it cannot later invoke a lack of information as a reason for delay.

In a recent ruling by the Amsterdam Court of Appeal (ECLI:NL:GHAMS:2025:1794), the Enterprise Chamber clarified that an entrepreneur does not have to wait indefinitely. The entrepreneur can no longer be expected to postpone his decision if he has given the works council sufficient opportunity to advise, but the works council does not respond within a reasonable period of time. In this regard, it is essential that it is clear to all parties in advance when the advice must be issued at the latest, why that moment is necessary and what the consequences are of advising too late.

Practical advice for employers

Avoid problems by making clear agreements with the works council in advance.

• Agree on a clear deadline with the works council.
• Record why that deadline is necessary.
• Communicate in good time about the consequences of late advice.

Has the entrepreneur acted carefully and given the works council sufficient time? Then he may take and implement the decision, even if the advice is not forthcoming.

In conclusion

The works council’s right to advise is an important instrument for employee participation. At the same time, the entrepreneur has the right to proceed. A good balance requires clear communication and agreements on deadlines.

Do you have any questions about the reasonable deadline or the consequences of late advice? Please feel free to contact us. We will be happy to help you find a suitable approach.

The introduction of the Gender Pay Transparency Directive Implementation Act has been postponed. On 7 June 2023, the European Wage Transparency Directive entered into force. The implementation of the Directive was initially supposed to be completed by 7 June 2026. However, on 15 September 2025, the minister of social affairs and employment informed that this timeframe is not feasible. The minister indicated that more time is needed to shape the national regulations and their implementation so that employers can implement the obligations effectively and with the least possible administrative burden.

The adjusted timeline is therefore as follows:

• Before the end of 2025: presentation of the bill to the Council of State.
• In 2026: parliamentary debate.
• No later than 1 January 2027: the intended date of entry into force in the Netherlands.

Back up for a moment: what does the Directive even mean?

In our earlier blog, we have already discussed in detail the main obligations for employers under the Directive. Below, we briefly recapitulate these obligations:

Obligations for employers

• Wage structures: employers should establish transparent, objective and gender-neutral wage structures. These structures should clarify how jobs are valued so that categories of equal or equivalent work can be identified. This can be used to determine whether women and men are paid equally within these categories.
• Employee information obligation: employers with 50 or more employees must inform employees of the average wage within the category of equivalent work. Based on this, employees can check whether they earn more or less than the average within their category.
• Duty to inform job applicants: employers must inform job applicants about the salary or pay scale of the vacancy even before the interview. During the job application, employers should not ask the applicant about the previously earned salary. This may in fact perpetuate a pay gap.
• Reporting requirement: employers with 100 or more employees are required to report on any pay gap.
• Pay review: in case of a pay gap of 5% or more that cannot be objectively explained or remedied within six months, the employer must conduct a pay review. This is a more comprehensive analysis of the gender pay gap, designed to further identify, remedy and prevent it.

Role for Works Council (OR) and reversal of burden of proof

• Role for the Works Council: the Works Council (OR) has an important role to play. For instance, the Works Council has a right of consent in determining the objective, gender-neutral criteria for the transparent pay structures and in determining the measures to be taken in case of an unjustifiable pay gap.
• Reversal of burden of proof: does an employer not comply with the above-mentioned transparency obligations or reporting obligation? In that case, a legal presumption of wage discrimination applies and the employer will have to prove that the rules on equal pay were indeed complied with.

What does the changed timeline mean for employers now?

The reporting requirement for employers with 150 or more employees will apply for the first time for calendar year 2027 (instead of 2026). Reporting is now due in 2028. The reporting requirement for employers with 100 to 149 employees remains unchanged and starts on 7 June 2030.

Employers with 150 or more employees will thus have to prepare for reporting for calendar year 2027 as early as 2026. Before then, the wage structures with the different categories of equal or equivalent work must be established. The Works Council has a right of consent on the objective criteria to be used to determine the wage structures. The Works Council also has a right to inspect the methods used in preparing the report and a right to be consulted prior to the submission of the report.

Employers would therefore do well to take advantage of the postponement of this directive and use this extra time to get their records in order to establish pay structures.

An employee with 36 years of service at a sausage factory decided to take a bag full of sausages home after one of his shifts. As he did not pay for the sausages, the employer intervened immediately upon discovering the incident. The employee was instantly dismissed for (alleged) theft. A court case followed in which he challenged his dismissal and claimed compensation. On paper, it seemed like a done deal. Yet both the subdistrict court and the court of appeal ruled that there was no urgent reason for the dismissal. The employee was awarded over two tons in compensation.

Taking sausages home had become a custom, not theft

The employee in question took home some sausages on 3 May 2024. On 6 May 2024, he was dismissed immediately. The dismissal letter stated, among other things, that the employee had taken sausages in a plastic bag after his shift without paying. The letter further noted that a crate is normally present with sausages that employees are allowed to take home free of charge, but this crate was not there on 3 May 2024.

The employee did not want to return to the workplace and claimed fair compensation. In first instance, the subdistrict court awarded him no less than €150,000 (ECLI:NL:RBNHO:2024:8684). The court ruled that there was no urgent reason for dismissal, as required under Sections 7:677 and 7:678 of the Civil Code. The employer did not have a clear policy regarding taking sausages home, and it appeared plausible that there was an established custom allowing employees to take home unsellable sausages.

The employer appealed the ruling (ECLI:NL:GHAMS:2025:2023), maintaining that the dismissal was legally valid. According to the employer, sausages were not allowed to be taken home without payment. There was no so-called “crate habit” allowing employees to take home unsellable sausages. The internal regulations also stated that theft was prohibited and that proven theft would result in immediate and irrevocable dismissal.

No pressing reason: the employer’s tolerated policy

The court of appeal ruled that there was no urgent reason justifying the dismissal. It sided with the employee, noting that the employer had a policy of tolerance. Evidence showed that a crate of sausages was regularly available at the hygiene lock for employees to take home—a practice that had been in place for years.

Although the company’s rules prohibited taking products without payment, in practice this was not treated as a violation. As a result, the alleged theft by the employee could not be established.

Furthermore, the court of appeal found that the employer had not sufficiently considered the employee’s personal circumstances. At the time of dismissal, he was 59 years old and had been employed for nearly 37 years. Apart from two official warnings regarding the smoking policy, he had an exemplary employment record. Given his age and long service, the financial impact of the dismissal would be significant.

A bag full of sausages ends up costing the employer hundreds of thousands of euros

The employee was ultimately awarded over €200,000 in compensation. In addition to fixed damages of €22,076.30 gross and transitional compensation of €52,619.01 gross, he was entitled to fair compensation of € 150.000 gross. The reason? There was no urgent cause for immediate dismissal, meaning the employer acted seriously culpably.

The court of appeal determined that fair compensation of €150,000 gross was appropriate. In setting this amount, the court considered all circumstances of the case, in line with the principles established by the Supreme Court in the New Hairstyle judgment (ECLI:NL:HR:2017:1187). (If you want to know more about the New Hairstyle judgment: read the following blog: New Hairstyle: the outcome – Wieringa Advocaten).

The court of appeal also took into account that the employee had served the company satisfactorily for 36 years and had only received two warnings, both related to the smoking policy. It was plausible that he would have continued working for the employer until his planned retirement on 13 March 2032.

Lessons for employers

A legally valid summary dismissal for theft must meet very strict requirements—it is truly a last resort. After summary dismissal, an employee loses entitlement to wages, transitional compensation, and often unemployment benefits. Because the consequences are so severe and errors can be costly, it is crucial for employers to understand their legal position, especially when there is no clear policy regarding taking items from the workplace.

If you find yourself in a similar situation or want to prevent such costly mistakes, contact us. We are happy to advise on the correct legal steps and help ensure any dismissal is handled properly.

As an employer or HR professional, sooner or later you may face an employee who is not performing adequately. This can create tension: how should you handle it, what is allowed and what is not, and how can you ensure that any dismissal procedure will hold up in court? In this blog, we explain what you need to know about underperformance, improvement processes, and dismissal, with practical tips to guide you.

What does underperformance mean?

Underperformance occurs when an employee consistently fails to meet the expectations of their role. Legally, this falls under Section 7:669(3)(d) of the Dutch Civil Code. It can take many forms: delivering substandard work, being unable to handle the workload, or having difficulty interacting effectively with colleagues or clients.

It is crucial that the employee clearly understands what is expected of them. This can be communicated through the job description and concrete agreements made during performance discussions.

In practice, we often see employers act too quickly and move straight to dismissal, even when the documentation is incomplete. Courts do not grant dismissals for underperformance lightly. Acting too hastily can result in a dismissal request being rejected, leaving the employee in service or forcing the employer to pay a high fair compensation.

The improvement process: clarity, time and support

Once underperformance is identified, it is essential to implement a structured improvement process. This usually begins with a conversation where the employer openly discusses the employee’s performance and explains that it does not currently meet the job requirements. It must also be clear that if the employee wishes to remain in their role, specific improvements are necessary.

The employee is entitled to understand the expectations and must be given sufficient time to improve. One effective way to formalize this is by creating a detailed improvement plan. The plan should specify the areas requiring improvement and how progress will be measured. Ideally, the plan should align with the original job description and expected competencies.

The duration of an improvement process varies depending on factors such as the complexity of the role, the employee’s experience and qualifications, the nature of the underperformance, and the length of service (ECLI:NL:HR:2019:933). In practice, six months is a common timeframe, with interim evaluations to review progress. Everything agreed upon should be carefully documented, ideally with the employee’s signature confirming acknowledgment.

Courts also expect employers to provide sufficient support during this process. This can include coaching, training, or other resources to help the employee improve. Demonstrating that you have done everything possible to support the employee’s development is critical if the dismissal is later challenged.

What to do if underperformance persists

Employers have some discretion in determining whether an employee has adequately improved (ECLI:NL:HR:2018:182). If performance remains insufficient after several months, consider whether redeployment within the organization is possible (Article 7:669(1) of the Dutch Civil Code). This involves identifying a role better suited to the employee’s skills and experience.

If redeployment is not feasible, the employer can initiate a dismissal procedure with the subdistrict court. The court will assess whether:

• Clear and fair expectations were set for the role.
• The employee was clearly informed about their underperformance and the required improvements.
• The employer provided sufficient time and support to achieve the improvements.
• No suitable redeployment options existed within the organization.

Carefully following these steps and documenting them thoroughly significantly increases the likelihood that a dismissal will withstand legal scrutiny.

Conclusion: Handling Underperformance

Addressing underperformance is challenging, but by implementing a structured improvement process, maintaining clear communication, and meticulously documenting each step, employers can act safely and confidently. This approach ensures the employee has a fair chance to improve and that any dismissal is legally sound.

We regularly advise employers on handling underperformance and implementing improvement processes. Do not hesitate to contact us—we can guide you through the right steps and help ensure your actions are legally robust.

Our lives are increasingly taking place online. Every day, we share sensitive information via our phones, social media and digital payments. This makes protecting our personal data more important and more challenging. As an employer, you also have a major responsibility in this regard: you process your employees’ personal data and must handle it with care. Employees also have the right to know what data you process about them. But what exactly does this right of access entail?

Right of access

The General Data Protection Regulation (GDPR) has been in force since 2018. This law lays down clear rules for the processing of personal data. For employers, this means that they are obliged to guarantee the privacy of their employees.

Under Article 15 of the GDPR, every data subject has the right to access their personal data. This right also applies within the employment relationship. An employee can ask their employer to access their personal data. As an employer, you must comply with this request in principle. This means that the employee has the right to access their personal data and to receive a copy of it. In addition, as an employer, you must explain the purpose for which this data is used and with whom it may be shared.

A request for access may only be refused in exceptional cases. This may be the case if the request is manifestly unfounded or excessive, or if the provision of the data would adversely affect the rights and freedoms of others. In addition, the GDPR Implementation Act (Article 41 UAVG) provides for a restriction: access may be refused if it poses a risk to public safety or the prevention or detection of criminal offences. The threshold for refusing a request in whole or in part remains high.

The form in which an employer must share data with the employee always depends on the specific circumstances. As an employer, you are not always required to provide all requested documents and copies. The important thing is that the employee receives a comprehensible overview, which they can use to check whether the data is correct and is being processed lawfully. This can be done, for example, by means of a comprehensible processing overview of all personal data.

What is not covered by the right of access?

Not all documents need to be shared with the employee. A ruling by the Midden-Nederland District Court (ECLI:NL:RBMNE:2021:1354) states that internal memos containing personal thoughts of colleagues or managers are not covered by the right of access, as long as they are intended solely for internal consultation and deliberation. Examples include internal emails regarding a possible dismissal. Legal analyses based on personal data cannot be classified as personal data as such.

This changes as soon as such documents become part of the employee’s personnel file. The personnel file contains all the documents that the employer keeps about an employee. These include the employment contract, performance or assessment reports, or documents relating to absenteeism. Once documents are included in the personnel file, they are subject to the right of access. The employer must then include this information in an overview or, if that is not possible, provide a copy.

In addition, when providing information, you must not infringe on the rights and freedoms of others. This is laid down in Article 15(4) of the GDPR. An employer must take into account the privacy rights of other employees and third parties. In principle, sharing personal data of colleagues or third parties with the employee is not permitted. However, an employer may send an anonymised version so that no damage is caused to the interests of third parties (ECLI:NL:RBAMS:2024:1219).

Practical examples

In practice, this concerns, for example, official performance reports or interviews, which form part of the personnel file. The personal data contained therein must be provided to the employee. It is often sufficient to provide an overview of the processing of personal data, with a summary of what can be found in each document. Complaints from an employee are another practical example. These often contain personal data of the employee themselves, but sometimes also of third parties. The documents that specifically relate to the employee are subject to the right of access and must therefore be provided in an overview. Information that is confidential or concerns the personal data of others, on the other hand, may be partially refused or anonymised.

In conclusion

It is important for employers to handle access requests from employees with care. In practice, we find that this often gives rise to questions or discussions. Therefore, please do not hesitate to contact us. We will be happy to advise you on how to handle an access request correctly.