It is a pleasure to send you the third edition of the Employment Update of Baker McKenzie Amsterdam’s Employment & Compensation Practice.
With this digital newsletter, we will keep you up to date with the current developments in the field of Employment law that may be of interest for your practice.
If you would like to find out more about this newsletter, please do not hesitate to contact us.
Extension of paternity leave on hold
Employees in the Netherlands are presently entitled to two days' paid paternity leave. A legislative proposal to expand paternity leave to five days is currently on hold after the VVD (a Dutch political party) declared the legislative proposal controversial. The extension of paternity leave will now be discussed in coalition negotiations and will be handled by the new government. At the same time the European Commission announced that it wants to introduce paternity leave of at least 10 paid days.
N.B. As of 1 April 2018, maternity leave for multiple births will change. A woman who is expecting multiples usually takes maternity leave 10 weeks prior to the expected date of delivery. If the employee gives birth before the expected date of delivery, the remaining days' maternity leave may be added to the maternity leave after the birth. Previously, this was only possible if the maternity leave that was taken before the birth of the multiples was shorter than 6 weeks. This will now be adjusted to 10 weeks.
Employers have discretionary power to organize and structure the activities of their companies
The Court of Appeal recently ruled that Rabobank (a Dutch bank) has rightfully implemented position changes that were part of an extensive restructuring process. The employees affected by the position changes were of the opinion that, even though their position had changed to position A, they in practice carried out position B, where the two positions could not be distinguished from each other.
Moreover they argued that position B had remained unchanged after the restructuring. According to the employees, Rabobank disregarded the procedural aspects of the restructuring. Furthermore, they claimed the new position was not suitable. The Court of Appeal ruled that, partly in view of the discretionary power of the employer to organize and structure the activities of its organization, in this case, Rabobank did not follow the restructuring process incorrectly.
Employers' organizations agree upon extension of the unemployment benefit term
On 8 May 2017, employers' organizations have – albeit somewhat reluctantly – agreed to extend the unemployment benefit (in Dutch: WW-uitkering) term from two to three years. With this extension, the prior economization of the term will be revoked. Employers' organizations have agreed to the extension under the condition that the employee contribution remains in place, and the proposed financing arrangement will not cause administrative burdens. Employers' organizations fear that the financing method – where employers pay the contribution for the first two years of unemployment, and the employees pay the contribution due for the third year of unemployment – may, in future, cause trade unions to demand pay increases to compensate for the employee contribution.
European Court of Justice rules on whether years of service should be taken into account after a transfer of undertaking
On 6 April 2017, the European Court of Justice (the "Court") ruled whether, following a transfer of undertaking, an employee’s accrued years of service at the transferor should be taken into account in order to determine the notice period of the employee. In earlier judgments the Court has ruled that the number of years of service at the transferor cannot be considered as a standalone right which could be enforced by employees at the acquirer. However, this does not mean that the number of years of service is part of certain financial entitlements of employees and that those entitlements must, in principle, be taken into account by the acquiring party on the same basis as at the transferor.
In this case, it was a six-month notice period which led to an entitlement of payment of six months' salary. The notice period should therefore be considered a financial right. Article 3 (1), first paragraph of Directive 2001/23 must be interpreted that an acquirer who dismisses an employee after a transfer of undertakings should, in order to determine the notice period, take into account the number of years service at the transferor.