In principle an employer can only end a contract unilaterally with a permit from the UWV. Only after such approval the employer can give notice. Such dismissal permit is obliged pursuant to article 6 of the Extraordinary Labour Relations Decree 1945 (BBA).
This Decree is regarded as a “priority rule”. This means that the BBA may apply to an employment contract to which Dutch law does not apply. But then again, it does not apply to foreign employees in all cases. It depends on the facts and circumstances if a foreign employee enjoys the same preventive protection against dismissal. It used to be determinant if the employee would fall back on the Dutch labour market after his dismissal. Recent case-law reveals emphasis on the protection of employees, regardless of whether they are permanent residents or not. Importance is attached to other relevant elements like: the location at which work is performed, place of residence, the employer's location and the law governing the contract.
On the basis of this it is determined whether the situation is similar enough to that of Dutch employees. Foreign employees working in similar conditions as Dutch colleagues could fall under the scope of the BBA. If there is sufficient distinction on the other hand, the BBA does not apply and the employer does not have to apply for a dismissal permit.
The BBA will disappear however; the preventive protection against dismissal is transferred from the BBA to the Dutch Civil Code. With this also discussions on the applicability of the BBA will end. Starting point will be equal treatment; foreign employees will have the same employment protection as soon as Dutch law applies to their contract (if e.g. an employee usually works in The Netherlands and the employment contract is not more closely connected with another country).
To give an impression, see a judgment of the court in Amsterdam, late 2014 (ECLI:NL:RBAMS:2014:7132). It is interesting to note that Dutch law was applicable to a contract between a Dutch employer and an employee posted in Venezuela, with the Russian nationality, who has never lived or worked in The Netherlands. The court considered that the BBA did not apply; notice itself was enough. Also the court noted, in this context, that there is no reason to anticipate the Dutch employment law reform.
At this moment the BBA still could offer an “escape” thus in case of termination of an international employment contract. Given the fact that it will disappear and in view of the upcoming developments in Dutch employment law, it makes good sense for employers (posting employees here) to review their expat policy and think of more flexible contract forms.
In case you need advice or assistance, also in international matters, contact us.
Ruig+Partners advocaten
Anna Kielczewska
www.ruigpartners.nl