Change of policy rules regarding UWV’s involvement in dismissal

In certain instances, an employer may decide to terminate an employee’s employment contract through the UWV (the Employee Insurance Agency). In that case the employer first submits a request for dismissal to the UWV. The UWV assesses every request for dismissal based on its own policy rules. Recently, a number of policy rules were changed, with effect from 1 September 2012. The most prominent changes are outlined below.

Procedural aspects

Previously, if an employee failed to respond to the UWV in good time following a request for dismissal, the UWV would check whether the employee had received the request, for instance by contacting the employee. In many cases the UWV would then grant the employee extra time to respond. The UWV has now withdrawn this possibility. If an employee for whom a request for dismissal has been submitted does not respond within the given period, the UWV will consult the municipal personal records database [gemeentelijke basisadministratie] to determine whether the employee’s address corresponds with that indicated by the employer. If it does, the employee will not be given a renewed opportunity to put forward a substantive defence. The UWV will then make its decision based on the documents submitted by the employer. If you submit a request for dismissal, we recommend that you enclose with it a copy from the municipal personal records database showing the employee’s correct address. At the same time we advise you to explicitly notify your employee that if he/she fails to submit a substantive defence on time, the UWV will ignore any submissions he/she makes later.

Principle of proportionality

Dismissals for business reasons must be determined on the principle of proportionality. Aside from the fact that the method for determining this has been simplified, an employer may, in the event that two employees in the same age category entered employment on the same date, choose which employee to put forward for dismissal.

Business establishment

To determine the group of employees to which the principle of proportionality must be applied, it is important to first decide which company or companies the UWV considers to be the business establishment [bedrijfsvestiging].

A new development is that if certain (new) criteria are satisfied, several legal entities can together form a single business establishment. An example of this is a parent company with one or more subsidiaries, each of which carries out a separate business activity. For example, if according to the criteria tested by the UWV, the staff of the various subsidiaries is in fact controlled from one central location, the various entities can be considered as a single business establishment.

Dismissals in the employment agency sector

If you are an employment agency, in the request for dismissal you must demonstrate the likelihood that there are no possibilities for relocation [herplaatsing] of the employees put forward for dismissal and that you have conducted relocation activities for one, three or four months. NB: if an employee is ill when his/her last temporary employment contract ends, the relocation period only commences once he/she has recovered.

Relocation

Under the policy rules, it is not necessary to dismiss an employee whose position has been made redundant if a solution can be found through staff turnover or transfer. The UWV will ascertain whether the employer has made any effort in this regard. The employer is also obliged to favour internal candidates over external ones. Although this did not used to be obligatory, this provision was a frequent feature of social plans before 1 September 2012. Another new development is that permission to dismiss will not be granted if an employee takes the position that there are relocation possibilities and an (internal) objections committee appointed by the employer agrees with the employee.

Collective redundancy

Previously, termination of an employment contract by mutual agreement (on the basis of a termination agreement) was not taken into consideration in determining the number criterion (20) for collective redundancy. This has been changed to include terminations by mutual agreement.

In addition, the employer’s obligation to adhere strictly to a particular substantiation in notifying collective redundancy has now been scrapped.

Impaired employment relationship

Contrary to previous practice, the UWV will no longer issue a substantive opinion regarding who is to blame if an employer submits a request for dismissal on the basis of an impaired employment relationship. The UWV is of the opinion that if an employee issues so-called manifestly unreasonable dismissal proceedings [kennelijk onredelijk ontslagprocedure], it should be reviewed by the Subdistrict Court.

Long-term incapacity for work

In this situation too, an employer will himself be allowed to choose which documents to use to substantiate a request for dismissal. The obligation to include certain documents from the re-integration file has been scrapped. In practice it has not always proved necessary to submit the prescribed documents. It is important, however, that the documents used to substantiate such a request contain adequate and up-to-date information about the employee’s incapacity for work, the prognosis for recovery, and the efforts made and opportunities that exist to relocate him.

Dismissal at 65

Employers frequently submit requests to dismiss employees who have turned 65 (referred to as leeftijdsontslag). In some cases, employers might offer such an employee a new fixed-term employment contract. The purpose of terminating a contract through the UWV is to preclude the situation in which the new fixed-term employment contract does not end automatically but must be terminated by the employer, again with the permission of the UWV. If you wish to dismiss an employee who has turned 65, you must demonstrate that he/she will be replaced by a younger jobseeker.

Conclusion

Although some changes simplify the situation for employers, others require careful attention and preparation. The most prominent changes are the new interpretation of the term business establishment [bedrijfsvestiging] and the relaxed criteria applicable to collective redundancy [collectief ontslag].