Constructive dismissal under Dutch law
Under Dutch employment law, the concept of constructive dismissal is captured in Article 7:671c of the Dutch Civil Code: an employee can request the kantonrechter to dissolve the employment contract in cases where the employer has created circumstances that make it impossible or unreasonable for the employee to continue working. This includes situations where the employer has demoted the employee unlawfully, created a hostile working environment, withheld wages, systematically excluded the employee from work, or taken other measures deliberately designed to make the employee leave.
If the court grants the dissolution at the employee's request on the basis of the employer's culpable conduct (ernstig verwijtbaar handelen van de werkgever), the employee is entitled to the transition payment and may also be awarded fair compensation (billijke vergoeding) under Article 7:671c(3) of the Dutch Civil Code. The fair compensation is intended to reflect the consequences of the employer's unlawful conduct and can substantially exceed the transition payment in serious cases.
Evidence and the burden of proof under Dutch law
The employee must demonstrate that the employer acted seriously culpably (ernstig verwijtbaar) in creating the untenable situation. This requires concrete evidence: emails, letters, performance review documents, witness statements, and medical records if the stress has caused illness. Dutch courts set a high threshold for ernstig verwijtbaar conduct - not every difficult employer-employee relationship meets this standard. An employment lawyer will assess the strength of the evidence and advise on the realistic prospects of success before proceedings are initiated.
Practical alternatives: the settlement agreement route
Constructive dismissal litigation is demanding and uncertain. In many cases, the better strategy is to use the threat of Article 7:671c of the Dutch Civil Code proceedings as leverage to negotiate a favourable settlement agreement that includes the transition payment, a reasonable additional compensation, a positive reference letter, and WW-compliant wording. An employment lawyer can pursue this strategy without you having to leave your job first.
Article 7:671c of the Dutch Civil Code empowers the subdistrict court to dissolve the employment contract on the employee request where circumstances exist that make continued employment unreasonable; if the dissolution is attributable to serious culpable conduct by the employer (ernstig verwijtbaar handelen), the court awards both the transition payment and fair compensation (billijke vergoeding) under Article 7:671c(3) of the Dutch Civil Code. All dissolution proceedings are initiated by petition under Article 7:686a(2) of the Dutch Civil Code, and decisions of the subdistrict court are subject to appeal to the Court of Appeal; however, an appeal against a dissolution granted at the employee request under Article 7:671c is limited to the compensation amount (Article 7:683(2) of the Dutch Civil Code). The court determines the termination date but, in contrast to employer-initiated dissolution, the time spent in proceedings is not automatically deducted from the notice period in the same way.
Article 7:671c of the Dutch Civil Code empowers the subdistrict court to dissolve the employment contract on the employee request where circumstances exist that make continued employment unreasonable; if the dissolution is attributable to serious culpable conduct by the employer (ernstig verwijtbaar handelen), the court awards both the transition payment and fair compensation (billijke vergoeding) under Article 7:671c(3) of the Dutch Civil Code. All dissolution proceedings are initiated by petition under Article 7:686a(2) of the Dutch Civil Code, and decisions of the subdistrict court are subject to appeal to the Court of Appeal; however, an appeal against a dissolution granted at the employee request under Article 7:671c is limited to the compensation amount (Article 7:683(2) of the Dutch Civil Code). The court determines the termination date but, in contrast to employer-initiated dissolution, the time spent in proceedings is not automatically deducted from the notice period in the same way.