The protection of works council members, part 1: ban on detriment and termination

1 June 2023 – Barbara Spliet

Members of the Works Council, but also, for example, members of Works Council committees, are protected against detriment under the Dutch Works Councils Act (WOR) (section 21 WOR). Works Council members may not be adversely effected in their position in the company because of being a Works Council member. Therefore, among other things, missing out on promotion, a warning or an unsatisfactory performance review due to membership of the Works Council are in violation of the WOR.

Warning can be an act of detriment

Recently, this prohibition of detriment was once again confirmed in a ruling on a warning of a Works Council member: the subdistrict court found that there was a link between the detriment and the membership of the Works Council, as the warning related to the employee’s actions as chairman and his conduct during a Works Council meeting. The employer must therefore remove the warning from the personnel file

Niet elke waarschuwing is een benadelingshandeling

In another case, however, a warning letter was not considered an act of prejudice. In that case, the court ruled that the works council members, with the way they had approached external relations without the employer’s knowledge, were acting outside their works council powers. A warning is a possibility to sanction that.

Ban on termination

In addition to a ban on detriment, there is also a ban on termination for Works Council members if the request to terminate the employment contract is be related to the Works Council membership.

In a recent case, the court concluded that the employer’s dissolution request was indeed related to circumstances related to the Works Council membership. Underlying this dissolution procedure was a dispute over compensation hours: the employee claimed he was entitled to compensation hours because the employer had arranged replacements for other Works Council members for the time they were engaged in work for the Works Council, but in the case of this employee this was not possible. This meant that the employee had had to do the work for the Works Council during working hours, leaving his usual work on hold. The employee had made up that work in the evening hours and on weekends, thus accumulating compensatory hours. A dispute then arose between the employee and employer in which various allegations were made on both sides.

The court ultimately ruled that the employment contract could not be terminated because the dispute over the compensation hours could be traced back to (whether there was a lack of or insufficient care for) facilitation of the employee’s work for the Works Council. This is not just an employment-related issue.

Thus, there is no ban on termination of the employment contract for Works Council members if the termination of the employment contract is not related to the Works Council activities, but also not, for instance, in case of closure of (part of) the company or if the job is lost due to economic reasons. In that case, however, the employee must have worked for at least 26 weeks at the job that is being abolished.

Barbara Spliet