In principle, employers are not required to take the initiative to terminate dormant jobs. The Supreme Court simply accepted the obligation for employers to accept a long-term sick leave application for the worker, terminate the employment contract and pay the transition costs. While the notion of sleeping employment may seem attractive to employers, there are some risks if a dormant contract can survive. As long as the job is on hold, the employer has an obligation to classify the worker in the labour market as soon as the worker is at least partially reintegrated, provided there are realistic opportunities. At some point, a cashed-up employee may request reinstatement and subsequent payment of salary. If the reinstated worker fills another suitable position for a period of four weeks or more, the right to the sick period begins again, so that the employer suspends the maintenance of the salary. The Supreme Court disagrees. Following the Supreme Court ruling, employers are now required to accept a proposal from an employee with a dormant employment contract to terminate that employment contract with mutual agreement, subject to the granting of statutory severance pay. The reason for this obligation for employers is the principle of good employment practices. An exception to the obligation to terminate the dormant employment contract and the payment of the statutory amount of severance pay may be accepted in cases where the employer has an appropriate interest in not terminating the employment contract, for example. B if there is reason to wait until the employee can be reinstated in the near future. One of the possible consequences of these restrictions is that an employer may force a worker to agree on compensation that does not exceed the UWV`s compensation received by the employer If the transition costs are higher than the remuneration, the employer may threaten not to terminate the contract and to leave the work on hold. Finally, I would like to say that the Supreme Court has accepted the obligation for employers to cooperate in ending so-called dormant employment contracts.
It is recommended that employers act in the short term, in November or December 2019. Workers with dormant employment contracts should be actively informed that the Supreme Court has ruled in their favour. When workers offer to terminate their dormant employment contract, employers are in principle required to accept this proposal and pay the legal amount of severance pay. In the event that the amount of the statutory severance pay payable after 2020 is less than the amount to be paid in 2019, it is recommended that the termination of the dormant employment contract take place in 2019 (if necessary, regardless of the current notice period). If the employee agrees, the actual payment of the statutory severance pay may take place in 2020. The starting point is that in the event of compulsory redundancy after two years of employment, the transitional payment must be paid, regardless of the reason for dismissal, and must therefore also be paid to persons with long-term disabilities. However, the law does not provide for a redundancy requirement. In principle, Dutch labour law is designed to prevent unfair dismissals. Procedures of this kind usually take a few months before the Supreme Court, so we have to wait and see if workers can end a dormant working relationship.
By maintaining the employment contract, the employee is „trapped“ in his employment contract. The worker may terminate the employment contract on his initiative. However, in this case, he is not entitled to a transitional allowance. The Supreme Court found an exception to this rule and found that the obligation to prove and the burden of proof of that exception rests with the employer.