Considerations for employers upon a notice to terminate

Employers may not simply assume that an employee’s notice to terminate their employment contract is valid. In some cases the employer has a duty to investigate the issue whilst keeping in mind the ‘clear and unambiguous’ standard developed in case law.

The Dutch Supreme Court recently ruled that this standard does not apply when the employer gives notice to terminate the employment contract.

Notice to terminate the employment contract by the employee
Examples of situations in which employers may not blindly rely on the validity of the notice are situations where an employee terminated their employment contract verbally, under pressure or in a highly emotional state. The employer should then investigate whether the employee actually intended to give notice. According to the aforementioned ‘clear and unambiguous’ standard, an employee’s notice must be clear and unambiguous to be considered valid.

The extent of this duty to investigate depends on several factors, like the comprehensibility of the statement, the employee’s job level, and whether the employee could foresee the consequences of their notice to terminate; for example, does the employee realize that they are not entitled to social benefits if they give notice to terminate?

The employer can fulfill this duty to investigate by, for example, meeting with the employee to clarify the situation, asking questions and explaining the consequences of such termination. The employer may also allow a ‘reflection period’ during which the employee can withdraw the notice to terminate.

A case in point is a recent decision by the Gelderland District Court in which an employee, after making a gross mistake – she had accidentally e-mailed confidential financial information to third parties – informed the employer the next day by WhatsApp: “(…) but I want you to know that I think the best way for me is to quit. I will surely take some weeks to leave everything organize for the next person. (…) Thanks for everything you have done for me, I am truly grateful. (…)”. The judge ruled that this message could not be understood as anything other than a clear and unambiguous statement, which was supported by, among other things, the fact that the employee: i) did not go back on her earlier statement(s), ii) on another day, also agreed via WhatsApp to discuss her departure, iii) refused to carry out her work in the office, despite requests to do so, and iv) also officially announced her departure to the outside world via LinkedIn.

Termination of an employment contract by the employer
The Dutch Supreme Court recently ruled that the ‘clear and unambiguous’ standard does not apply to termination by employers.

Employers are not always required to verify that an employee has understood that the employer has terminated the employment contract. Nor are employers always required to inform their employees of the consequences of termination. What can be expected of the employer depends on the circumstances of the case. Unfortunately, the Dutch Supreme Court did not explain which circumstances might give rise to this requirement.

In addition, the Supreme Court concluded that a ‘statement of termination’ (notice of termination by the employer) only has effect from the time it actually reaches the employee rather than the date stated in the termination letter. Here, the Supreme Court followed the ‘receipt theory’ contained in the Dutch Civil Code, entailing that a statement addressed to a particular person only has effect if it has reached that person.

Takeaways
Consequently, employers do not, in principle, have to make additional efforts if they terminate an employment contract, although they must obviously be able to demonstrate that the termination letter actually reached the employee, and when. The employer can do so by, for example, first obtaining a dismissal permit from Employee Insurance Agency UWV and then sending the permit to the employee, along with the notice to terminate, by e-mail or, for example, by registered mail or courier.

Lees deze blog in het Nederlands hier.