Ernstig verwijtbaar handelen by the employer under Dutch law
Where the dismissal of an employee is the result of seriously culpable acts or omissions (ernstig verwijtbaar handelen of nalaten) by the employer, the employee is entitled to fair compensation (billijke vergoeding) in addition to the statutory transition payment. This right is established in Article 7:682 and Article 7:683 of the Dutch Civil Code. The concept mirrors the employee-side rule on serious culpability, but applied to employer behaviour.
Courts have found employer-side serious culpability in situations such as: dismissal of a protected employee (for example, a pregnant employee or trade union representative) without valid ground, dismissal motivated by an improper reason in retaliation for whistleblowing, systematic harassment or bullying by management leading to forced departure, a pattern of deliberately failing to fulfil re-integration obligations during sick leave, and structurally denying salary payments or other key terms.
The New Hairstyle standard in Dutch dismissal law
The Dutch Supreme Court developed guidelines for calculating the billijke vergoeding in the New Hairstyle ruling (ECLI:NL:HR:2017:1187). The court held that the fair compensation is not capped and must genuinely compensate for the consequences of the employer's seriously culpable conduct. The kantonrechter must consider: what the employee's financial situation would have been without the seriously culpable conduct, what future employment prospects exist, and whether the employee contributed to their own departure. This can result in substantial awards in cases of blatant employer misconduct.
Resignation due to employer conduct under Dutch law
An employee who resigns in response to seriously culpable employer conduct is deemed to have been constructively dismissed (ernstig verwijtbare gedragingen werkgever leiden tot opzegging). Under Article 7:683 paragraph 3, the court may award a billijke vergoeding to such an employee even though they resigned rather than being dismissed. The employee must establish the causal link between the employer's conduct and the resignation. Employees in this position should seek advice from an employment lawyer in the Netherlands urgently.
Where the court of appeal finds that an employer's dissolution request was wrongly granted, it may - under Article 7:683(3) of the Dutch Civil Code - order the employer to restore the employment contract or, if restoration is not feasible, award a billijke vergoeding in lieu of restoration. This court-awarded billijke vergoeding on appeal is distinct from the damages claim an employee may bring under Article 7:677(2) and (3) of the Dutch Civil Code when the employer violates the notice period rules: the billijke vergoeding specifically serves as a sanction against seriously culpable employer behaviour and is assessed on a forward-looking basis under the New Hairstyle criteria, whereas the Article 7:677 claim is a compensatory award limited to the wages over the missed notice period.