The Dutch Supreme Court recently ruled that conditional termination of an employment agreement after an instant dismissal remains possible under the Work and Security Act. But this possibility is limited: a conditional termination request can only be granted if the sub-district court considers an instant dismissal to be unlawful. If the instant dismissal is considered lawful, the sub-district court cannot grant a conditional termination request, in anticipation of a potentially different judgment. In other words, the sub-district court cannot decide on the termination, because the court of appeal might rule that the instant dismissal is unlawful and order reinstatement of the employment agreement. The definitive termination date after an instant dismissal therefore will remain uncertain for a longer period under the new law than under the old law. This means that employers can no longer cover themselves against an unfavourable ruling that the instant dismissal was unlawful. Employers should also take into account that proceedings may take longer than before, as the law of evidence also generally applies to termination request procedures, including conditional ones. Caution is therefore advisable.
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