Zwolnienie grupowe: czy można negocjować indywidualne ustalenia?

In a Dutch collective dismissal you can negotiate an individual arrangement that departs from the social plan, recorded in a settlement agreement (vaststellingsovereenkomst). The employer is free to refuse, however, and your room to negotiate depends mainly on whether the unions agreed the social plan and whether you can show an objective reason why your situation differs from that of your colleagues.

This article explains when a dismissal is collective, how much weight a social plan carries, which arguments work, and which deadlines apply if you do not sign.

When is a dismissal collective?

A dismissal is collective when an employer intends to end the contracts of at least 20 employees in one UWV working area within three months. The rules are in the Collective Redundancy Notification Act (Kolekcja mokrego łączenia ontslag, WMCO).

Under Article 3 WMCO, the employer must then notify UWV and the trade unions in writing and consult the unions. Terminations by mutual consent at the employer’s initiative count towards the threshold. Under Article 5a WMCO, contracts may not be terminated until one month after the notification, unless the unions declare in writing that they have been consulted and can accept the terminations.

UWV does not deal with dismissal applications until the notification and consultation duties have been met (Article 6 WMCO). If the employer skips them, the subdistrict court (sąd rejonowy) can annul the termination at your request, or award fair compensation instead (Article 7 WMCO). You must file within two months of the day you could reasonably have known of the breach, and no later than six months after the termination.

The works council has a separate right to advise on the reorganisation decision under Article 25 of the Works Councils Act (Wet op de ondernemingsraden, WOR). The unions negotiate the terms of departure; the works council advises on the decision itself.

How much weight does the social plan carry?

A social plan agreed with the trade unions is hard to set aside: the court only departs from it if applying it to you would be unacceptable by the standards of reasonableness and fairness (redelijkheid en billijkheid). A plan the employer drew up alone carries less weight and is reviewed more critically.

A social plan usually covers severance on top of or instead of the statutory transition payment (opłata za przejście), outplacement, a training budget, a contribution to legal costs and rules on the notice period. A positive advice from the works council does not turn a unilateral plan into an agreed one, because the works council cannot agree terms of employment on behalf of staff.

No plan may fall below mandatory law. The transition payment is owed from the first day of employment. Under Article 7:673b of the Dutch Civil Code (BW), only an equivalent provision in a układ zbiorowy pracy (cao) can replace it; a plan drawn up by the employer alone cannot.

Czy można negocjować indywidualne warunki?

Yes. Most employers prefer ending contracts by mutual consent over a UWV procedure for every employee, because it is faster and more certain; that preference is your leverage.

The instrument is the ugoda. Pushing harder without a reason rarely works. Under the duty to act as a good employer (dobry werkgeverschap, Article 7:611 BW), the employer may not treat comparable employees differently without objective justification. A request succeeds when it is framed as a reason, not as a demand.

Which grounds carry weight?

Three grounds work in practice: the hardship clause, a separate claim that is settled at the same time, and unequal treatment. Each gives the employer an objective reason to depart from the plan.

Klauzula dotycząca trudności

Większość planów socjalnych zawiera klauzulę dotyczącą trudności (klauzula hardheids) for cases where strict application would be clearly unfair. Examples are long unpaid leave or sickness that lowers the severance calculation, a pension date shortly after the end of the contract, or objectively poor re-employment prospects. Many plans route such requests through an advisory committee with a short deadline, so check the procedure before your notice period starts.

A separate claim settled at the same time

An unpaid bonus, a disputed non-compete clause, a reintegration dispute or an employer-liability claim under Article 7:658 BW are claims in their own right. If the employer buys them off with the departure, it is closing several files at once. That is an objective justification and often the most productive route.

Nierówne traktowanie i dyskryminacja pośrednia

A severance cap, or a reduction as the pension date approaches, may be indirect age discrimination under the Equal Treatment in Employment (Age Discrimination) Act (WGBLA). The employer must then show a legitimate aim and appropriate and necessary means. The same reasoning applies to rules that disadvantage part-time or fixed-term staff.

What happens if you do not sign?

If you refuse the settlement agreement, the employer will apply to UWV for a dismissal permit. UWV checks whether the business-economic reason is sound and whether the right employees were selected, normally by the reflection principle (początek afspiegelingsbeginsel) within interchangeable positions.

UWV does not award compensation. With a permit, the employer gives notice, observes the notice period and pays at least the statutory transition payment; whether the social plan extras also apply depends on the wording of the plan.

If you disagree, you go to the subdistrict court. Under Article 7:686a(4) BW, a request for reinstatement or fair compensation (sprawiedliwe odszkodowanie) must be filed within two months after the employment ends; a claim for an unpaid or miscalculated transition payment within three months. Fair compensation after a UWV permit requires seriously culpable conduct (ernstig verwijtbaar handelen) by the employer, such as a manipulated selection. These deadlines cannot be extended.

How does the works council affect your position?

The works council does not act for individual employees, but its position shapes the negotiating climate. If the employer departs from its advice, the works council can appeal to the Enterprise Chamber (Ondernemingskamer) z Amsterdam Court of Appeal within one month under Article 26 WOR.

An employer facing that appeal, and the delay it brings, is usually more willing to agree individual arrangements than one whose reorganisation is uncontested.

Co powinieneś sprawdzić jako pracownik?

• Whether the social plan was agreed with the unions or drawn up by the employer alone.
• Whether your severance is calculated on the right salary, including variable pay, and the right years of service.
• Whether the settlement agreement states that the employment ends at the employer’s initiative and that the notice period is observed, to protect your unemployment benefit (WW).
• Whether the final discharge clause waives claims you have not yet valued, such as holiday pay or a bonus.
• That you can revoke the agreement in writing within 14 days, or three weeks if the agreement does not mention this right (Article 7:670b BW).
• Whether the hardship clause has its own procedure and deadline.

Na co powinieneś zwrócić uwagę jako pracodawca?

• Whether 20 or more terminations in one UWV working area within three months trigger the WMCO notification.
• Whether the one-month waiting period of Article 5a WMCO has passed before any contract ends.
• Whether the works council was asked for advice on time under Article 25 WOR.
• Whether each individual departure from the plan rests on an objective, documented reason.
• Whether the selection follows the reflection principle, so a UWV application would hold if an employee does not sign.

What can we do for you with an individual arrangement in a collective dismissal?

Nasza prawnicy ds. zwolnień advise employees and employers in reorganisations; see also our overview of prawo pracy.

• We review the social plan and your settlement agreement within your 14-day reflection period.
• We check your severance and transition payment calculation.
• We assess whether a hardship clause, a separate claim or unequal treatment gives you a basis for a better arrangement.
• We negotiate with the employer and record the result in the settlement agreement.
• We conduct proceedings before UWV and the subdistrict court within the statutory deadlines.
• For employers, we prepare the WMCO notification, the union consultation and the works council request for advice.

Podsumowanie

• The WMCO applies when 20 or more employees in one UWV working area are dismissed within three months.
• A social plan agreed with the unions is hard to set aside; a unilateral plan is reviewed more critically.
• Individual arrangements succeed when based on an objective reason: hardship, a separate claim or unequal treatment.
• Check the settlement agreement for the WW wording, the discharge clause and the 14-day revocation right.
• After a UWV permit, claims for fair compensation must be filed within two months, transition payment claims within three months.

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