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You hire someone. The probationary period goes well. And then... after a few months, things go wrong: complaints, absenteeism, long-term incapacity for work. That one thought quickly pops into your head: “Wait a minute... didn't this employee already know this before he started working for us?”

In a recent ruling by the Amsterdam Court of Appeal, an employer tried to capitalize on that very thought by seeking to have the employment contract annulled out of court on the grounds of error. The employer also claimed back the wages paid during the period of illness. The court did not agree.

What happened?

The employee was hired as a mechanic. After some time, he began calling in sick frequently and eventually took a long-term leave of absence. The employer then claimed that when the employee entered into the employment contract, he knew or should have known that his health condition was such that it would severely and permanently limit his ability to work. According to the employer, the employee wrongfully concealed this information, which meant that the employment contract was voidable on the grounds of error. 

The employee contested this. 

Ultimately, the Court ruled that error is possible in employment matters, but that the employer must be able to demonstrate that:

1. the employee had information about his health when entering into the contract, and;
2. he knew or should have known that this would significantly and permanently hinder him in the agreed  position, and;
3. he should therefore have informed the employer.

And all of these points went wrong. The employee did have a history of complaints and examinations, but the diagnosis (a rare and chronic condition) only came later, after he had started working for his employer. Moreover, prior to starting work and for months afterwards, he had been doing physical work and had even performed well during his probationary period. No long-term treatment or rehabilitation program had been started prior to his employment. This made it difficult to say in retrospect: “You already knew at the time that the position of mechanic would not work out.”

The court ultimately ruled that the employer's claim of error was unsuccessful and that the employment contract could not be terminated out of court and therefore remained in force. As a result, the employee retained his entitlement to (back) pay. In addition, the employer had to pay the statutory increase on top of the back pay (the Court increased this to the full 50% instead of the more moderate 20% previously set by the subdistrict court) and the employer was also liable for the legal costs. In short: error sounds simple, but it can be costly. 

If you have any questions about incapacity for work, reintegration, or dismissal, please contact Dennis Oud, Tessa Sipkema, or Elke Hofman.

The full judgments can be read here.

When an employment relationship is under severe strain and can no longer be repaired, going to the subdistrict court is the obvious course of action. However, this recent ruling by the Arnhem-Leeuwarden Court of Appeal on December 1, 2025, shows once again that as long as an employee is sick, the door to dismissal rarely opens.

In this case, the employer attempted to terminate the employment contract on several grounds: poor performance, a disrupted working relationship, and a combination of grounds. The problem was that the employee was already ill at the time the petition was filed. This meant that the prohibition on termination during illness applied. The court can still terminate the employment contract, but only if the facts and circumstances cited for the dismissal are completely unrelated (abstract) to the illness.

The court was clear:

• The alleged shortcomings in performance were insufficiently substantiated.
• There was also no completed performance review file prior to the sick leave notification.
• The disruption of the employment relationship only seemed to escalate after the sick leave notification, partly due to conversations that took place during the sick leave. This is also evident from a report by the company doctor.

As a result, the grounds for dismissal could not be completely separated from the illness.

The result: termination is not possible and the employee must be reintegrated with the employer. The court does see problems with this and recommends that mediation talks should still take place during the first stage of reintegration and/or that the focus should be on the second stage.  

What does this mean for employers?

1. Be extremely careful when dismissing employees who are ill. 
2. Start a file in good time, before illness becomes an issue, or involve the company doctor in the advice to implement an improvement program.
3. Make it clear that any poor performance, culpable conduct, or disrupted working relationship has nothing to do with the employee's incapacity for work. Check this with the company doctor.
4. Be aware that the court will apply strict criteria when assessing a prohibition of dismissal due to illness.

Questions about the reintegration or improvement process for an employee? Please contact Elke Hofman, Dennis Oud or with Tessa Sipkema. 

You can read the ruling here.

This week, the Supreme Court published two interesting judgments that are important for employers. Both cases focus on the protection of employees, but the judgments provide clear guidance on the extent of that protection and where the limits lie.

Exclusion of previous years of service from transition allowance

In the Deme Offshore case, the Supreme Court ruled that previous employment relationships that were terminated by the employee themselves do not count towards the calculation of the transition allowance in the event of subsequent dismissal. The statutory ‘aggregation rule’ only applies if the initiative to terminate the previous employment relationship lay with the employer. This is important because the law can also be interpreted differently, namely that if the employment contract is terminated and re-entered within a period of six months, the employment relationship must always be regarded as a continuous employment relationship and therefore also counts towards the calculation of the transition allowance. The Supreme Court therefore ruled that this is not the case.

Invoking working hours despite rejecting an offer

In the Taxiwerq case, the Supreme Court ruled that an employee can also invoke the legal presumption of working hours (Section 7:610b of the Dutch Civil Code) with retroactive effect, even if he has previously rejected the legally required offer of fixed hours. The rules in Articles 7:628a and 7:610b of the Dutch Civil Code are separate from each other, and the protection afforded by the legal presumption therefore remains in force.

What can employers learn from this?

• Bear in mind that not every year of service counts toward the transition payment, particularly if the employee has previously resigned.
• An employee who refuses an offer of fixed hours may still claim wages (for the same period) based on actual hours worked. Therefore, ensure careful communication and record-keeping, and try to keep the flexible “zero-hour” pool as low as possible.   

If you have any questions about the ruling, please contact Tessa Sipkema, Elke Hofman, or Dennis Oud.

 You can read the full judgments here:

Deme Offshore judgment

Taxiwerq judgment

Due to the increasing workload in the courts, it is becoming more common for proceedings to take years. Sometimes the proceedings take so long that the original objector has already moved away. What happens to the ongoing proceedings in that case? That depends on the position of the objector. Different rules apply to the owner of a house/building than to a tenant. 

The Administrative Law Division of the Council of State clarified this distinction in its ruling of December 3, 2025. This case centered on the construction of a hostel. The municipal council of Rotterdam had granted an environmental permit for this project. The tenant of a neighboring house disagreed and lodged an objection. The municipal executive declared this objection unfounded, after which an appeal procedure was initiated in court. During the appeal proceedings, the tenant moved out. He was replaced by a new tenant, who also disagreed with the arrival of the hostel. The new tenant therefore wanted to take over the appeal. The court ruled that this was possible, but also ruled that the appeal was unfounded. The new tenant lodged an appeal with the Division.

The Division first ruled on the admissibility of the appeal. Unlike the court, the Division ruled that the new tenant could not take over the (higher) appeal from the previous tenant. As is apparent from established case law of the Division, the takeover of proceedings is only possible in the event of legal succession under a special title, provided that the interest in involvement in the proceedings has been transferred in its entirety. Legal succession under a special title could, for example, be the sale of a house. In that case, the owner's interest is transferred in full from the old owner to the new owner. 

Because this case concerned the transfer of the lease – and not the transfer of ownership – there was no question of legal succession under special title. The (higher) appeal proceedings could therefore not be taken over by the new tenant and the appeal was declared inadmissible. 

This ruling highlights an important difference between owners and tenants. That difference lies in their interests. Tenants mainly have residents' interests (noise pollution, parking problems, etc.). For owners, other interests may also play a role, such as a decrease in the value of the property. Owners therefore have a ‘greater’ interest in taking over the proceedings than tenants. Because new tenants can find out about ongoing proceedings in advance and still choose to rent a property, the Division does not consider legal protection to be necessary for them. 

You can read the ruling here. 

As an employer, can you dismiss an employee who is good at their job but brings the atmosphere in every team down to below zero? The subdistrict court in The Hague has given a clear and nuanced answer to this question: yes, a lack of ability to work with others can lead to dysfunction. But anyone who forgets the obligation to redeploy will be in for a nasty legal surprise.

This case concerns a project manager who has been employed since 2017. Everyone agrees on her professional qualities: she works hard, delivers results, and is even studying civil engineering on her own initiative. The problem lies in her ability to cooperate. Since 2018, the same theme has kept cropping up in meeting reports: she has difficulty interacting with colleagues, in teams, and with managers. It is not her professional skills, but her soft skills that are the stumbling block. Rijnland does not leave it at one conversation. The employee is placed in different teams, given different managers, and offered support, coaching, and mediation. Nevertheless, cooperation remains difficult and she is ultimately suspended.

Rijnland then requests termination of the employment contract, primarily due to a disrupted working relationship and, alternatively, due to poor performance. The subdistrict court judge dismissed the first ground: there is tension, but not such a disrupted relationship that it alone warrants termination. More interesting is what the judge said about poor performance. He emphasized that cooperation is not a nice bonus in a position as project leader, but an integral part of the job. An employee must therefore not only be good at their job; they must also be able to function in a team. Because the lack of ability to cooperate has been consistently identified, supported, and discussed for years, the subdistrict court judge concludes that the d-ground is valid.

As an employer, you would think that this settles the matter. But that is where the WWZ comes into play. Article 7:669 of the Dutch Civil Code requires more than just reasonable grounds: the employer must also demonstrate that redeployment within a reasonable period of time is not possible or reasonable. This is not a formality, but an independent test. In this case, this is precisely Rijnland's Achilles heel.

The employee does not necessarily want to leave; she is committed to keeping her job and has made a concrete proposal through her representative. She is willing to work partly from home and partly in another department, does not want to be isolated from her colleagues, and is open to guidance from an external coach to address the collaboration issues. In other words: not “I'm not to blame for anything,” but “I see that there is an issue and I want to work on it, as long as I can stay.”

The employer's response is crystal clear but disastrous: termination of employment is essential for her, and if the employee is committed to keeping her job, there is actually no basis for a settlement. The subdistrict court interprets this as Rijnland having definitively decided on termination and no longer seriously considering solutions within the organization. The transfers were not aimed at finding a position in which the problem would no longer arise and were overshadowed by the refusal to investigate the employee's concrete proposal. This conflicts with the intention of the legislator: employers are expected to actively investigate whether job retention—whether or not in an adapted form—is possible. The fact that the employee wants to stay should not be held against her; that is precisely what the WWZ aims to protect.

The outcome is tough for the employer. The subdistrict court acknowledges that there is poor performance, but finds that redeployment in a modified form is reasonable and that Rijnland has not made sufficient efforts in this regard. The request for termination is therefore rejected. In fact, Rijnland is ordered to allow the employee to return to work from September 1, 2025, broadly in line with its own proposal, on pain of a penalty of € 500 per day. 

The message is clear: anyone who focuses solely on termination runs the risk of reinstatement with a penalty.

If you have any questions, please contact Tessa Sipkema, Elke Hofman, or Dennis Oud.

You can read the ruling here. 

When an administrative body imposes an order subject to a penalty, the aim is to put an end to an illegal situation. The offender is then ordered, for example, to cease illegal use or to remove an illegal structure. But what if the offender is unable to do so?

This was discussed in the ruling of the Administrative Law Division of the Council of State on November 5, 2025. It concerned an order subject to a penalty that had been imposed for the construction of various extensions to a main building and the creation of two independent dwellings in that same main building, without the necessary environmental permits.

The legality of the order subject to a penalty was established in the opinion of the Division. The only remaining issue to be decided was the legality of the collection of the penalty. For that assessment, it was important that the offender had already indicated to the council that it was not entirely possible to remove one of the rooms because the outer walls were on the property line and were shared, which meant that the neighbors' permission was required to demolish the outer walls. The neighbors refused to give their permission. The offender therefore left only the outer walls standing, but removed the rest of the structure. Nevertheless, the municipal executive ruled that the order had not been fully complied with and that the penalty payment would therefore be collected.

The Division ruled that the board had acted contrary to the principle of due care. According to established case law, the council may refrain from collection in exceptional cases, for example if it appears that an order is unenforceable. According to the Division, the order was unenforceable in this case because the offender was dependent on the consent of the neighbors. The council was aware of this, but nevertheless issued the collection order, which was therefore made without due care. 

This ruling emphasizes that collection must be waived in exceptional cases and that the council must therefore always check whether the order is enforceable and the collection reasonable. 

You can read the ruling here.