Dismissal via the UWV

Under current legislation, an employer has no discretion to decide whether to refer to the UWV or the subdistrict court when terminating an employee’s employment contract. The dismissal procedure is laid down in the Work and Security Act. If the employment contract is terminated for business reasons or long-term incapacity for work, the employer must apply for dismissal via the UWV.

Applying for permission via the UWV

An employer who wishes to terminate an employment contract can first ask an employee to voluntarily agree to the dismissal. If both parties fail to reach an agreement, the employer can initiate dismissal proceedings via the UWV. Termination of the employment contract via the UWV applies in the following two situations:

Dismissal for business reasons
Dismissal due to long-term incapacity for work (longer than 104 weeks)

Is one of these causes the reason for the dismissal? Then the employer must request permission from the UWV. The UWV will grant a dismissal permit for this purpose. With this permit, the employer may terminate the employment contract.

Dismissal on economic grounds is possible:

if the company is in financial difficulty
in the event of a reduction in work and employment
due to organisational or technological changes
due to (partial) cessation of business
as a result of relocation of the business
due to the expiry of a wage subsidy

Dismissal on grounds of long-term incapacity for work is possible if:

the employee is no longer able to perform their work due to illness or disability
this situation has lasted for at least two years
the employee will not recover within 26 weeks
the employee is unable to perform the work in an adapted form within 26 weeks
replacement or an alternative position for the employee is not possible
the statutory obligation to continue paying wages has expired

Applying for a dismissal permit

If the employer and employee are unable to reach agreement on the termination of the employment contract, the employer can apply to the UWV for a dismissal permit. The employer asks the UWV for permission to terminate the contract. In the application for the dismissal permit, the employer must substantiate the reasons for the dismissal.

Dismissal without a dismissal permit

In specific situations, a dismissal permit is not necessary to terminate an employment contract. In the following cases, an employer does not need permission from the UWV to dismiss an employee:

The employee has reached the state pension age
Bankruptcy is the reason for the dismissal
The employee is still in their probationary period
The employee is summarily dismissed

What if an employment contract is terminated without a dismissal permit, even though this permit is required? According to the law, the dismissal is not legally valid in this situation. The employee can then challenge the dismissal through the subdistrict court and have it reversed. If the court rules in favour of the employee, the employment contract remains in force.

How does the dismissal procedure via the UWV work?

Once the dismissal application has been submitted in full to the UWV, the application will be processed. The processing time usually takes around four to six weeks, except in situations where additional hearings are necessary. The UWV’s decision will be sent by post to the employer and employee. The parties cannot lodge an objection to the UWV’s decision, but they can take the matter to the subdistrict court.

Termination with notice period

If permission has been granted, the employer may terminate the employment contract within the period specified by the UWV. The employer must, however, observe the notice period agreed between the parties in the employment contract. The UWV’s processing time may be deducted from this, provided that a minimum of one month’s notice period remains.

Permission for summary dismissal

The UWV may decide not to grant permission for dismissal. In that case, the employer may apply to the subdistrict court to challenge this decision and request the court to terminate the employment contract. This request must be submitted within two months of the UWV’s decision. The subdistrict court will assess the request on the basis of criteria similar to those used by the UWV.

When can an employer involve the subdistrict court instead of the UWV in the event of dismissal?

An employer must involve the subdistrict court in the event of dismissal for personal reasons, such as:

Poor performance: The employee does not meet the job requirements, despite improvement programmes.
Disrupted working relationship: There is a serious and lasting disruption of the working relationship.
Other personal reasons: For example, culpable conduct or conscientious objections.

In these cases, the employer must submit a request for termination of the employment contract to the magistrate.

Employee does not agree to dismissal

An employee may disagree with the dismissal. To appeal against the dismissal via the UWV, the employee can ask the subdistrict court to reinstate the employment contract within two months of the termination of the employment contract.

Dismissal by mutual consent

An employee may also decide to voluntarily cooperate with a dismissal. If an employer wishes to dismiss an employee and the employee agrees to this, this is referred to as termination by mutual consent. This avoids the procedure for dismissal via the UWV or going to the subdistrict court. In the case of termination by mutual consent, the employee can retain their right to unemployment benefits. Agreements on this must be laid down very precisely in a termination agreement.

What rights does an employee retain in the event of dismissal by mutual consent?

In the event of dismissal by mutual consent, laid down in a settlement agreement, the employee retains the right to the following under certain conditions:

Unemployment benefits: Provided that the employee is not culpably unemployed and the notice period is correctly included in the agreement.
Cooling-off period: The employee has a statutory cooling-off period of 14 days to terminate the agreement without giving reasons.
Negotiating terms: The employee can negotiate matters such as the amount of severance pay, exemption from work and the non-competition clause.

It is important that the settlement agreement is carefully drafted to safeguard the employee’s rights.

What are the most important steps in a dismissal procedure via the UWV?

A dismissal procedure via the UWV is followed in the event of economic reasons or long-term incapacity for work. The procedure is as follows:

Submitting a dismissal application: The employer submits a dismissal application to the UWV, including justification for the reason for dismissal.
Assessment by the UWV: The UWV assesses whether the application is complete and requests additional information if necessary.
Employee’s defence: The employee receives the application and may submit a written defence.
UWV decision: After assessing the documents, the UWV decides whether or not to grant the dismissal permit.
Termination of employment contract: With the UWV’s permission, the employer can terminate the employment contract, taking into account the applicable notice period.

The procedure is conducted entirely in writing and takes at least six weeks.

Applying for collective dismissal at the UWV

Sometimes a company is forced to dismiss several employees at the same time within a short period of time. When twenty or more employees have to be dismissed within three months for economic reasons, this is referred to as a collective dismissal. In that case, an official notification must be made to the UWV and the employee representatives and trade unions must be consulted. All the rules on this are laid down in the Collective Redundancy Notification Act (Wmco).

What are an employer’s obligations in the event of collective redundancy?

In the event of collective redundancy, whereby at least 20 employees in one area of work are made redundant within three months, the following obligations apply to the employer:

Notification to the UWV: The employer must notify the UWV of the intention to make collective redundancies.
Consultation with trade unions: Consultation must take place with the trade unions concerned about the proposed redundancies and their consequences.
Advice from the works council: If there is a works council, it must be consulted for advice on the proposed redundancies.
Social plan: Drawing up a social plan, in which agreements are made about, for example, severance payments and assistance in finding other work, is not mandatory but is customary.

These obligations are laid down in the Collective Redundancy Notification Act (WMCO).

Targeted advice on employers and dismissal

Is your company in financial difficulties or has an employee been ill for more than two years? And is dismissal a real option for you? The specialists in employment law and dismissal law at Fruytier Lawyers in Business can provide you with targeted advice on the various procedures, always giving priority to protecting the rights of your company. Our solicitors can also assist you in correctly terminating the employment contract and applying for dismissal via the UWV. For more information or no-obligation advice on employers and dismissal, please contact Fruytier Lawyers in Business.

Authors: Employment law solicitors Judy Sliepen and Myrddin van Westendorp