Find out what Dutch law means for you, as an expat

Tuesday 27th November 2012

Marjet van Yperen-Groenleerm.vanyperen@gmw.nl

Godelijn Boonmang.boonman@gmw.nl

Key Life Events

• Relationships

• Children

• The end of relationships

• Death

Relationships

• Marriage

• Registered Partnership

• Cohabitation

What are the legal consequences of your relationship and the manner in which you

choose to live• Legal status of children

• Parental authority

• Recognition in other countries

• Property consequences

• Hereditary issues

Cohabitation

• The state has no legal interest

• Children are born out of wedlock

• Cohabitation Agreement

• Partners are not each others heirs

Marriage

• Partners are each others heirs;

• Joint parental authority;

• Both parents are legal parents of their children;

• Without prenuptial agreement (prenups), spouses are married in general community of assets and property.

Marriage

• After moving to another country, check your matrimonial regime;

• If you have prenups, register them;

• Your matrimonial regime might change automatically after 10 years of living in the Netherlands or after naturalization.

What is the legal status of children born out of wedlock?

• Only legal relationship is with the mother;

• Recognition of the father is necessary for legal relationship;

• Only the mother has parental authority;

• Joint parental authority only if registered at court.

Children

• Always get permission in writing from the other parent to move abroad permanently with a child

Divorce

• Expats can divorce in the Netherlands;

• Different regimes can apply to different aspects of a divorce;

• Under Dutch law the only ground for divorce is irretrievable breakdown. It is a no fault system;

• A parenting plan is mandatory when filing for divorce;

• Residence permit.

Divorce

• You do not have to divorce in the country you were married in;

• Seek advice at an early stage from a lawyer in each relevant country.

Parenting plan

• Main place of residence;

• Care;

• Financial support;

• How the child is involved in drafting the parenting plan;

• Other arrangements if you wish.

What are the consequences of a divorce?

• Spousal support;

• Parenting plan;

• Division of matrimonial property;

• Pension.

Death

• A will: is your foreign will valid in the Netherlands?

• No will: statutory division (in Dutch: “wettelijke verdeling”)

• Taxation.

Expat Employee Rights

Introduction

Employee is very well protected under Dutch Labour Law;

Government has plans to change rules, however it is uncertain if and when these will be implemented;

Expat Employee Rights

I Dutch Labour LawII Employment ContractIII Termination of the employment contract

Dutch labour Law

Legal relation employer – employee is shaped by:

• Contract;• Mandatory rules of the Dutch civil Code;• European Legislation;• Collective Agreement (in Dutch CAO);• Spirit of the law;• Case law;• Fairness and reasonableness!• Academic writing.

Employment contract

3 elements:

• Employee must perform the activities personally;

• Salary;

• Relationship of authority.

Employment contract

Contracts of employment are not required to have any particular form.So, if the 3 criteria are met, but nothing is in writing or has been signed, there is an employment contract!

Employment contract

Definite ContractTermination by operation of law upon expiration

Indefinite ContractTermination upon noticeTermination by the Subdistrict courtMutual consent

Employer’s obligations

• Remuneration of the employee;

• At least minimum wages if above 23;

• 8% holiday allowance (even if it is not specified in the contract)!

• A minimum of 20 days leave (based on duration and hours of employment);

• A healthy and safe work environment.

Employee’s obligations

• To perform to the best of ones abilities;

• To follow employer’s instructions.

Non-competition Clause

Definition: a clause in the employment contract which prevents employees from working for another company in their area of expertise for a certain period of time.

Purpose: to protect the employer from any infringement by the former employee of employer’s economic interest.

Often perceived as unjust by expats.

Non-competition Clause

Always check if a non-competition clause is valid!

Void unless:- Written agreement;- Majority of age (18);

Other requirements:- Clear description of prohibited activities;- Limited to a certain period of time; usually 1 year;- Geographic area;

- Renewal necessary after change of position.

Ways of getting out of it?

Subdistrict courts can set aside or limit when:

• Employer has no interest in maintaining the clause;• Employer’s interest carries less weight than employee’s interest.

The Subdistrict court can also order compensation for duration of the period.

Unilateral Change of Contract by Employer

Only in case of a compelling reason.

Reorganization to cut costs is NOT considered to be compelling.Reorganization due to financial difficulties might be.

Termination of employment contract

• High degree of protection against dismissal;

• Also for expats?

• Different ways to terminate an employment contract;

Termination during trial period

A trial period must be agreed upon in writing

Either party may terminate the contract with immediate effect withoutsanctions within:

• A maximum of 2 months if contract is for an indefinite period;• A maximum of 1 month if contract is for a definite period < 2 years• A maximum of 2 months if contract is for a definite period > 2 years

Termination by Notice

LRD (in Dutch BBA) dictates that UWV permission is mandatory.LRD is applicable to expats?

Protection of expats by LRD is increasing: case law!

Termination by Notice

Suppose LRD is not applicable:

Termination by notice is valid when notice period is taken into account.

Termination by Notice

Suppose LRD is applicable:

UWV permission is required to terminate by notice.

No permission?Claim payment and salary

Termination by Subdistrict court

• Shorter proceedings;

• Severance may be awarded on the basis of the Subdistrict CourtFormula.

Mutual Consent

• No notice is required;

• Be sure to have the proposed termination agreement reviewed by a lawyer.

Summary Dismissal

In Dutch: ontslag op staande voet

• Only in urgent cases;

• Validity depends on all the circumstances.

What to do when summarily dismissed

What to do when summarily dismissed

• Contest termination and claim continuation of agreement;

Or

• Acquiesce in the termination and seek to recover damages on the grounds that termination was unlawful.

E m.vanyperen@gmw.nlE g.boonman@gmw.nl

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