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Can an employer summarily dismiss an employee who steals money to fund his gambling addiction? The Court of Appeals in ’s-Hertogenbosch addressed this question in a recently published ruling.

The case involved an employee who had been with the company for over 11 years and held a managerial position. Over the course of several months, he had taken at least €8,000 from his employer’s safe and cash register. He acted in a systematic manner and attempted to conceal the cash discrepancies. After the employer investigated the irregularities and confronted the employee with the findings, he was summarily dismissed.

The employee did not accept the dismissal. He argued that his actions stemmed from a gambling addiction and that, given the employer’s duty of care, the employer should first have referred him to the company physician.

The court did not agree with this argument. Although a gambling addiction can be classified as an illness, this does not automatically mean that the misappropriation of funds must be attributed to that illness or that the employee was unable to foresee the consequences of his actions. According to the court, the medical statements submitted and the statement from an addiction counselor also provided insufficient support for this position. In addition, the court took into account that the employee had acted in a calculated and systematic manner over an extended period. Nor did his personal circumstances, including his long tenure with the company and financial difficulties, outweigh the seriousness of his conduct and the resulting breach of trust. Furthermore, the court considered it significant that the employee had agreed to abide by the employer’s house rules and code of conduct. These stipulated, among other things, that any confirmed fraud would result in termination and that employees were expected to demonstrate integrity and honesty.

In addition, the court ruled that the employer had acted with sufficient promptness. The employer had needed a few days to review surveillance footage, consult with HR and a legal counsel, and give the employee the opportunity to present his side of the story. According to the court, this approach demonstrated due diligence, and the duration of the investigation did not detract from the promptness of the termination.

The summary dismissal was therefore upheld. In addition, because of his grossly negligent conduct, the employee was not entitled to a transition payment.

This ruling underscores that citing an addiction does not automatically preclude a legally valid summary dismissal. The assessment remains dependent on all the circumstances of the case. Not only do the nature and severity of the employee’s conduct play a role, but so do the diligence and promptness with which the employer acts.

Are you, as an employer, facing a potential urgent reason for termination, or are you unsure about the correct approach? Please feel free to contact us to discuss your options. 

You can read the ruling here.

Earlier this year, we wrote a blog post about an employee who had been working primarily from Ecuador for many years. In that case, the subdistrict court ruled that working from Ecuador had by then become a condition of employment. The employer was therefore not permitted to simply require the employee to return to working from the Netherlands. You can read the blog post here. 

The Arnhem-Leeuwarden Court of Appeals has since reviewed the case and reached a different conclusion. You can read the ruling here.

What was the situation again?

The employee left for Ecuador in 2020. Initially, a twelve-month arrangement had been agreed upon with his employer. Due to the COVID-19 pandemic, things did not go as planned, and ultimately, the employee worked largely from Ecuador for several years. Starting at the end of 2021, he was physically present in the Netherlands for an average of only seven weeks per year.

The subdistrict court judge ruled that, over time, this way of working had become an integral part of the employment contract. Factors contributing to this ruling included the fact that the employer had allowed the situation to continue for years and had not systematically evaluated the arrangement. According to the judge, it was therefore no longer a temporary exception but a permanent way of working.

The court of appeals takes a different view.

No acquired right

According to the court, it was not sufficiently demonstrated that the employee could reasonably expect to continue working permanently from Ecuador. A contributing factor was that the original agreement was made for twelve months and was intended as a probationary period. Furthermore, due to the COVID-19 pandemic, that agreement was never implemented as originally intended. According to the court, the actual situation that arose thereafter did not last long enough to establish a permanent term of employment.

The fact that the employer did not explicitly state that the situation would remain temporary does not alter this conclusion. Nor is the fact that the employee performed well while working from Ecuador and that his supervisor was positive about the collaboration sufficient to establish a permanent right to work from Ecuador. According to the court, more is required for that.

The court does, however, acknowledge that the employer could have been clearer. A large organization with a professional HR department should have been expected to better document, both in writing and verbally, that the situation was temporary. That lack of clarity, however, is not in itself sufficient to constitute a term of employment.

What does this mean for employers?

The rulings clearly show that, when determining whether an acquired right has arisen, all circumstances of the case are relevant. Based on those circumstances, the subdistrict court ruled that working from Ecuador had become a condition of employment. The court of appeals assessed those circumstances differently and concluded that this was not the case.

Allowing a particular way of working for many years does not, therefore, automatically mean that an acquired right exists, but it can lead to disputes such as this one. For this reason, when making exceptions, establish clear agreements with the employee. Clearly specify how long the agreement is valid, evaluate it in a timely manner, and agree on what will apply afterward.

If you have any questions about your flexible work policy, please contact Dennis Oud, Tessa Sipkema, Noa Bilogrevic of with me.

A familiar concept, but this time at a different time of day: today, the Employment Law Team organised its first ever lunch session at LakeSeven! 

During this session, we took our guests through a number of current and upcoming developments in employment law. Topics covered included the current situation regarding self-employed workers without employees (ZZP’ers), the WTTA, the Self-Employed Persons Act, the Act on Greater Security for Flex Workers, and pay transparency. 

It was a successful afternoon full of knowledge-sharing, interesting discussions and valuable encounters. Thank you to all the clients who attended and, of course, to LakeSeven for their excellent hospitality and lovely venue!

The use of self-employed workers in the healthcare sector has been the subject of considerable attention for some time now. This regularly raises the question of when a healthcare professional can actually be regarded as self-employed and when the working arrangement in fact qualifies as an employment contract. A recent ruling by the Limburg District Court shows that genuine self-employment can exist within the healthcare sector, even when the self-employed person carries out work that is also performed by salaried employees.

In this case, a healthcare professional carried out work for the Pergamijn care institution under a contract for services. After that contract had been terminated, the healthcare professional argued that he had in fact been working as an employee. He therefore claimed, amongst other things, wages and the employment law protections associated with an employment contract. The subdistrict court judge did not agree with this argument.

In reaching his decision, the subdistrict court judge first considered the rights and obligations that the parties had actually agreed upon. He then assessed whether, having regard to all the circumstances of the case, those agreements had the characteristics of an employment contract. Factors of importance in this regard include how the work and working hours are determined, the extent to which the worker is integrated into the organisation, whether he must carry out the work personally, how remuneration is arranged, whether he bears any commercial risk, and whether he actually behaves as an entrepreneur. It is therefore a question of the overall picture and not solely the name the parties have given to their agreement.

What is striking about this ruling is that the healthcare professional carried out work that was substantively comparable to that performed by Pergamijn’s employees. According to the subdistrict court, however, this was insufficient to establish an employment relationship. After all, the fact that the same work is also carried out by salaried employees may be linked to the nature of the work itself. Furthermore, the healthcare professional did not take part in general work meetings or staff meetings, and no performance reviews were conducted with him.

The healthcare professional also enjoyed a considerable degree of independence in other respects. He was not assigned to a fixed rota. The planning department would bring available shifts to his attention, after which he could decide for himself which shifts to accept or decline. Pergamijn could not oblige him to work a particular shift. Furthermore, he carried out his work independently and at his own discretion, without separate supervision or management from Pergamijn. The fact that he was required to adhere to the care plan, the applicable professional standards and the relevant care legislation did not, in the view of the subdistrict court, alter this. After all, such frameworks stem in part from the nature of care provision.

Another factor was that the care professional was able to arrange for a replacement. He could cancel a shift no later than 24 hours before it was due to start and, if unable to attend, had to arrange a suitable replacement himself. He also bore a financial risk: he was paid exclusively for hours actually worked and received no remuneration in the event of illness or holiday. He issued his own invoices, held his own public liability insurance and was personally responsible for matters including taxes, insurance and pension contributions. Moreover, during the course of the collaboration, he also worked for other clients.

After weighing up all the circumstances, the subdistrict court judge concluded that there was no employment contract. Both the agreements and their actual implementation were consistent with a working relationship between a client and a self-employed contractor. The healthcare professional’s claims were therefore dismissed.

For organisations working with self-employed contractors, it therefore remains important that their practices align with the chosen form of contract. A contract for services alone is not sufficient. The self-employed person must also have genuine scope to refuse assignments, carry out their work independently and bear the entrepreneurial risk.

Do you have any questions about the use of self-employed contractors or about ensuring your contracts align with actual practice? Please contact Dennis Oud, Tessa Sipkema, Elke Hofman-Bijvank or Noa Bilogrevic.

You can read the judgment here. 

At a meat wholesaler, an employee took hamburgers on several occasions without registering or paying for them. His employer dismissed him with immediate effect. According to the subdistrict court, this went too far in the circumstances.

The employer invoked a zero-tolerance policy, but failed to demonstrate sufficiently that this had been clearly communicated and consistently enforced. For example, the posters in the canteen did state how staff were to order products, but did not specify that breaching those rules could have consequences, nor what those consequences might be.

Furthermore, statements from employees revealed a different practice: products were regularly nibbled on or leftover meat was shared out, whilst the employer was aware that other employees were also taking products without registering them. According to the subdistrict court, there was therefore no question of a strictly and consistently applied zero-tolerance policy.

Personal circumstances were also taken into account. The employee was 64 years old and had apparently been working for the company to the employer’s satisfaction for 25 years. According to the employment tribunal judge, the employer could have made do with a less severe sanction, such as a warning. The summary dismissal was therefore upheld.

The employee accepted the termination of his employment, but was awarded over € 246,000 gross in severance pay. Of this, nearly € 160,000 gross consisted of fair compensation, based in part on the expected loss of income and pension benefits up to his retirement. This was supplemented by arrears of wages, holiday pay and holiday hours, with a 50 per cent statutory increase. Interest and legal costs were also borne by the employer.

This ruling demonstrates once again that a strict policy on paper is not enough. Rules must be clear, regularly brought to employees’ attention and consistently applied in practice.

The holidays are over, diaries are filling up and everyone is back at work. So this is a good time not only to switch the coffee machine back on, but also to dust off your staff regulations. Are your internal rules still up to date, clear and in line with actual practice? Curious to find out what we can do for you? Our employment law team is here to help.

You can read the ruling here.

AI is popping up everywhere these days, and is therefore becoming increasingly common in legal practice too. That need not be a problem in itself. However, anyone who uses AI to draft a court document and then forgets to check whether the facts, legal reasoning and supporting evidence are accurate and complete may face serious consequences during the proceedings.

This is also evident from a recent ruling by the Limburg District Court. In this case, an employee sought payment of a transition payment following the termination of their employment contract. According to the subdistrict court judge, the application had been “clearly fabricated with the aid of AI”. The problem lay not in the use of AI itself, but in the way it had been handled: any sound factual and legal basis was entirely absent.

For instance, it was not clear how the employment contract had been terminated, whereas this is precisely what is relevant to the question of whether there is a right to a transition payment. A mere reference to Article 7:673 of the Dutch Civil Code was, according to the subdistrict court judge, simply not enough. The employee was given the opportunity to supplement his petition, but did not take advantage of it. The claim was ultimately dismissed in its entirety.

AI can produce legally convincing texts, but polished wording does not in itself constitute a sound litigation strategy. A legal document must be grounded in the specific facts, apply the correct legal framework and be supported by evidence. Anyone who uses AI without carefully making that translation runs the risk that a document which appears professional will, in substance, be of little merit.

For solicitors and other legal professionals, the lesson is therefore not that AI should be banned from litigation practice. On the contrary: it can be a valuable tool. But it is one that requires critical scrutiny. AI can assist with drafting, structuring and contributing ideas, but the legal responsibility remains with the human being.

Are you involved in an employment law dispute and would you like an assessment of whether your case is legally sound? Then please contact Dennis Oud, Tessa Sipkema, Elke Hofman-Bijvank or Noa Bilogrevic, rather than relying olely on a chatbot. AI is capable of a great deal, but expert legal advice remains a bespoke service.

You can read the judgement here.