Until 1 July 2015, no appeal can be lodged against dismissal decisions. That will be different. Employees who have been dismissed can already receive unemployment benefits and can also collect the severance pay. Their employers run the risk that the higher court will reverse their dismissal.
How does it work now?
If an employee does not agree to the dismissal, the employer can choose which procedure to follow. If the employer opts for dissolution via the subdistrict court, an appeal is not possible. If the employer opts for the dismissal permit at the UWV, then no appeal is possible against the decision of the UWV. However, the employee can then start a “manifestly unreasonable dismissal” procedure. An appeal is possible in that case. The dismissal is then already fixed and it (usually) only concerns the compensation.
What will change in the UWV process?
The UWV assesses applications for dismissal for business economic reasons or because of illness or incapacity for work that lasts longer than 2 years. From 1 July 2015, the employer can lodge an appeal with the subdistrict court against a negative decision on the applied for dismissal permit. This is not a real appeal because the UWV is not a judge, but the UWV procedure is now linked to a resit in court.
What changes with the dismissal route via the subdistrict court?
An appeal can be lodged with the Court of Appeal within 3 months against the decision of the subdistrict court judge to dissolve the employment contract. This right belongs to both the employer and the employee.
How will the higher court judge?
An employer can appeal if the dismissal is not given. The higher court will then have to apply the legal rules applied in the previous procedure quite strictly, but the fact is that the employer can still achieve his goal. An appeal may also relate to a dismissal that has already been given. In theory, a dismissal can be reversed on appeal at the request of an employee. It is expected that this will not happen often, and that in appeal cases it will usually concern the amount of the severance pay.
The pros and cons
Before 1 July 2015, appeals were possible to a very limited extent. The Work and Security Act is intended as a simplification, but this is not a simplification. Both employees and employers have no interest in doubting whether an employment contract is still in effect. On the other hand, an appeal offers a second chance and aims to promote the formation of law and legal unity. This is useful for new legislation, the effects of which are not yet entirely clear. Before 1 July 2015, subdistrict court judges had plenty of room to chart their own course. Higher courts can promote the same application of the new legislation by lower courts.
No suspensive effect
The lodging of an appeal does not mean that the ruling is not yet valid. As long as the higher court has not yet made a decision, the ruling must be complied with. For a dismissed employee, this can mean that he can claim unemployment benefits and the severance payment determined by the court, but this lapses if the higher court cancels the decision of the subdistrict court. This can lead to serious complications.
The strategic effect of appeal
At first glance, a dismissed employee has little to lose on appeal, while a long period of legal uncertainty is very difficult for an employer. This translates into a strong bargaining position for the employee, from the moment he lodges an appeal. It is possible that the new transition payments, which are lower than the old severance payments, will be higher through negotiations after an appeal has been lodged. In this way an employer can buy off the uncertainty. The question is whether the government has foreseen these consequences when introducing this new regulation.
An appeal is heard in a court of appeal. That is not the highest court: the highest court is the Supreme Court. In special cases, after a ruling by the Court of Appeal, further proceedings can be taken in a cassation case before the Supreme Court. In that case, the period of uncertainty about the dismissal will last much longer.
Appeals and legal assistance insurances
Many employees are assisted in dismissal cases by lawyers from their legal assistance insurance. The quality of legal aid has been criticized. In the event of an appeal, the involvement of a lawyer is mandatory. Under new rules, people with legal expenses insurance may always use a lawyer at the expense of their insurance. Read more about the free choice of lawyer here.