On 1 June 2016 the Subdistrict court in Leiden ruled that the reflection period in termination agreements starts at the moment that parties have reached an agreement on the essentials of the termination of the employment agreement.
An employee who enters into a termination agreement to terminate his employment agreement with his employer with mutual consent, is given a reflection period of fourteen days. During the reflection period the employee has the right to (unilaterally) dissolve the termination agreement, without having to give reasons, by providing a written statement to the employer. In case that the employer omits to include the reflection period in the termination agreement, the reflection agreement is automatically extended with one extra week, resulting in a reflection period of three weeks.
The employee in the case at hand took the standpoint that the reflection period had only started at the moment that both parties had signed the termination agreement. This would follow from the ‘written form requirement’ (schriftelijkheidsvereiste) that is applicable when entering into a termination agreement. The employee followed a recent ruling of the Subdistrict court in Rotterdam. The Rotterdam court ruled that the reflection period had not started at the moment that parties had confirmed their mutual consent by email but at the moment that parties had signed the termination agreement.
The Leiden court could not disagree more. The court ruled that the written form requirement does not go as far as requiring that the reflection period only starts at the moment of signing the termination agreement. If the legislator had intended to create such a radical deviation from the basics of regular contract law and from the principle of offer and acceptance (aanbod en aanvaarding), this deviation would have been laid down in the law or at least in the legal history. According to the Leiden court the Dutch Supreme Court (Hoge Raad) has ruled that the written form requirement serves to secure that the employee has profoundly considered the consequences of an onerous clause. The Leiden court also took into consideration that case law shows that the written form requirement has also been met in case that the employee has given his consent by WhatsApp or email.
In the case at hand the employee had been represented by a legal advisor who had been negotiating and emailing back and forth with the employer about the terms and conditions of the termination of the employment agreement. According to the Leiden court the employee had therefore sufficiently considered the consequences of the termination of the employment agreement.
We are of the opinion that this court ruling does not mean that from now on each and every form of consent will have the effect that the reflection period starts. For the reflection period to start it is required that the employee has taken good notice of the terms and conditions of the agreement and that he realizes the consequences thereof.
We expect that this has not been the last ruling on this matter. We will keep you posted.