Netherlands Update: What is the value of an employer’s statement?

Every employer has had to deal with an employee who needs an employer’s statement. Many employers fill in the form neatly – after all, you help your employee wherever possible. Case law has already stipulated that an employee cannot derive any rights from a completed mortgage statement stating that ‘there is an intention to continue the fixed-term employment contract’. The employee may then not legitimately trust that the employment contract will actually be continued.

In a lawsuit published this week, the question arose whether an employee could claim continued payment of a (fixed) 13th month during incapacity for work. The agreement on this was not unambiguous:

• The vacancy stated that the 13th month is part of the employment conditions.
• In an e-mail after the job interview, this is somewhat toned down: “a 13th month is paid if the operating result allows it”.
• The employment contract stated that “payment of a 13th month is left to the employer himself”.

Anyway, it all doesn’t really fit together. The employee receives a 13th month in the 2016, 2017 and 2018. Employee becomes ill in 2019 and will no longer receive a 13th month in 2019, 2020 and 2021.

In 2018, however, HGM filled in the employer’s statement stating that the employee is entitled to a 13th month – an unconditional income component laid down in the employment contract. Employee claims the 13th month for 2019, 2020 and 2021.

The court rules in favour of the employee and also looks at the employer’s statement. The judge concludes that: “Although that is not decisive in view of the nature and purpose of an employer’s statement, it does play a role in the interpretation of what the parties have agreed.”

The lesson: be aware that an employer’s statement can play a role in the explanation of agreements!

Read the full verdict here

By Hocker, Netherlands, a Transatlantic Law International Affiliated Firm. 

For further information or for any assistance please contact netherlands@transatlanticlaw.com

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