Legal Advice on Employment Contract Notice Period

Questioner

My employment contract contains the following provision: '...with a notice period of two calendar months.' It is not specified whether this applies to the employer or employee. My employer indicates that this provision of the employment contract is therefore in conflict with the statutory provision and that the statutory notice period must therefore still be adhered to. Is that correct? I have been employed for less than 5 years and the statutory 1 month notice period applies. Does this apply to both employer and employee? Does the UWV therefore also adhere to the statutory notice period when applying for unemployment benefits or do they base their decision on the employment contract?

Lawyer

Article 7:672 paragraph 7 of the Dutch Civil Code states: The term referred to in paragraph 4 may be deviated from in writing. The term of notice for the employee may not be longer than six months in the event of extension and for the employer not shorter than twice that for the employee. According to settled case law, as an employee you have the freedom to annul the termination clause that conflicts with this. In that case, the statutory notice period applies. If you as an employee annul this provision, you commit a detrimental act towards the UWV when applying for unemployment benefits. I therefore advise you to hold your employer to the agreed notice period of 2 months. If your employer continues to be difficult, I advise you to stand your ground because you can walk away with a month of unemployment benefits. If necessary, you can let it come to a wage claim on your employer. If you need support with this, you can contact me directly.

Questioner

But do you as an employer also have the freedom to annul the termination clause that conflicts with this. And if so, then the statutory notice period applies.

Lawyer

No, according to established case law the employer does not have that freedom. Sources: Art. 3:40 paragraph 2 BW, Rb Gouda, 10 June 2004, JAR 2004/11, Court of The Hague 14 April 2006, JAR 2006/116, Court of Arnhem 17 June 2008, LJN BH2125 (can be found on rechtspraak.nl), Court of 's-Hertogenbosch 5 June 2012, LJN BW 7795 (idem).

Questioner

Called the employer's assistance insurance and he indicated that there was indeed a discussion from UWV regarding the notice period and starting WW benefits. He stated that the central public prosecutor's office has made a ruling on this and that termination may be made in deviation from the employment contract and that UWV must follow that. I have asked them to look into this thoroughly (on your advice, without mentioning this site) and the corresponding articles in the law have been mentioned. And it is very clear that this is not possible. He is now going to submit this to the employer. We do not want to make a case or get more out of it than what is right and that was also understood. Both parties want to work solution-oriented. So now waiting for new response.