The fictitious notice period (fictieve opzegtermijn)
The fictitious notice period (fictieve opzegtermijn) is a concept in Dutch social security law that prevents employees from receiving WW unemployment benefits immediately after the end of employment if the actual notice period was not (fully) observed. Under the Unemployment Benefits Act (Werkloosheidswet, WW), the UWV treats the employment as if it had continued for the duration of the applicable statutory notice period - hence the term 'fictitious'. WW benefits only start after this fictitious period has expired.
The statutory notice period for the employer is set by Article 7:672 of the Dutch Civil Code and depends on the length of service (dienstjaren): one month for up to five years, two months for five to ten years, three months for ten to fifteen years, and four months for fifteen or more years of employment. These notice periods can be extended by the employment contract or the applicable CAO, but the extended period is relevant for the fictitious period calculation only if it does not exceed six months in total.
Practical calculation in a settlement agreement
In a settlement agreement, the parties agree on an end date for the employment. For the employee to avoid a WW delay, this end date must be at least the length of the fictitious notice period after the date of signing the VSO (or after the date on which the employer communicated the proposal). If the end date is sooner, the UWV will withhold WW benefits for the remaining fictitious period. This means that a generous compensation can be partially offset by a WW delay if the notice period is not correctly accounted for in the VSO end date.
Deduction from severance pay
Where the employee receives severance pay in addition to the transition payment, the UWV may treat a portion of the severance as wage-equivalent and extend the fictitious period accordingly - though this analysis is complex and depends on how the payment is characterised in the VSO. An employment lawyer experienced in drafting settlement agreements can ensure that the VSO is structured to minimise any WW delay.
The statutory notice period for the employer runs from one month (less than five years of service) to four months (fifteen or more years), as set out in Article 7:672(2) of the Dutch Civil Code; an extension agreed in writing is relevant for the fictitious period calculation only if it does not cause the total period to exceed six months. In a settlement agreement, the agreed end date must lie at least the length of the statutory notice period after the date on which the employer communicated the termination proposal; an end date that is too early causes the UWV to withhold WW benefits for the remaining fictitious period. Where the employer has awaited a UWV decision on a dismissal permit, the time spent waiting may be deducted from the notice period, provided the remaining period is not reduced below one month (Article 7:672(6) of the Dutch Civil Code).
The statutory notice period for the employer runs from one month (less than five years of service) to four months (fifteen or more years), as set out in Article 7:672(2) of the Dutch Civil Code; an extension agreed in writing is relevant for the fictitious period calculation only if it does not cause the total period to exceed six months. In a settlement agreement, the agreed end date must lie at least the length of the statutory notice period after the date on which the employer communicated the termination proposal; an end date that is too early causes the UWV to withhold WW benefits for the remaining fictitious period. Where the employer has awaited a UWV decision on a dismissal permit, the time spent waiting may be deducted from the notice period, provided the remaining period is not reduced below one month (Article 7:672(6) of the Dutch Civil Code).