The Works Council has the right to be informed in detail of planned measures to mitigate the social impact for employees

11 October 2021 – Barbara Spliet

When requesting the advice of the Works Council pursuant to the Dutch Works Council Act an overview must be provided of (a) the consequences of the intended decision for the employees and (b) the social measures to be taken in this respect. The latter might include a social plan or other social support measures. The advice on the measures should also be requested from the works council when a social plan is concluded with the trade unions. If the before mentioned conditions are not met, the decision of the employer is, in principle, manifestly unreasonable.

A recent judgment of the Amsterdam Corporate Chamber emphasizes the obligation to ask the Works Council for advice on social measures. In this situation the employer had only outlined a voluntary redundancy programme in the request for advice, however it was unclear what would happen to employees who were to be made redundant if not a sufficient number of employees would opt for the redundancy programme. With regard to the compulsory redundancies, it was only mentioned that an attempt was being made to minimise these redundancies. According to the Corporate Chamber, the employer offered insufficient insight into the consequences of the decision for its employees.

This judgment, as well as earlier case law of the Corporate Chamber, shows that the employer must outline the measures in detail. Once this has been done, however, it is not always easy for the Works Council to convince the Corporate Chamber that these measures are unreasonable or insufficient. The content of the personnel measures is generally only reviewed marginally by the Corporate Chamber, although it will always have to be established whether the company could have reasonably reached the decision in question when weighing up all of the interests involved.

Barbara Spliet