You probably haven't missed it: it's tax return season again. Many of us could use some expert help with this. From an employment law perspective, this can lead to some interesting questions. This week, we discuss a case in which a tax administration employee also worked on tax returns in the evenings. You can read how that turned out here:

What is the case about?

The employee has been working for the Dutch Tax and Customs Administration since March 1982 and handles tax returns from foreign taxpayers, among other things. Following a report, an investigation revealed that the employee was preparing tax returns for third parties in the evenings in exchange for payment. An aggravating circumstance is that the employee consulted the Tax and Customs Administration's systems for this purpose.

Following this investigation, a meeting was held between the employee, the team leader, the unit director and an O&P adviser. During this meeting, the employee stated that he had provided tax advice to two individuals on several occasions, for which he had consulted his employer's systems, that he had been paid for his services a few times (€60 per occasion), and that he had assisted his stepdaughter's father, his father and mother, and family members with their tax returns, and no one else.

The employee subsequently received a letter from the State stating that he had been suspended in the interests of the organisation on suspicion of a serious breach of integrity. The State then initiated termination proceedings before the court on the grounds of serious culpable conduct. Strangely enough, the employee did not put forward a defence and did not appear at the hearing, even though he had requested a postponement.

What is the court's ruling?

Although courts set high standards for dismissal on the grounds of serious culpable conduct, this court ruled that the facts showed that the employee had indeed acted in a seriously culpable manner.

The court terminated the employment contract with immediate effect. It found that the employee had acted in breach of the prohibition on ancillary activities by providing tax advice to several people. The employee was not permitted to provide such tax advice without permission. The State added that it would not have granted such permission even if it had been requested: these ancillary activities are incompatible with being a civil servant at the tax authorities. Another factor is that the employee accessed the tax authorities' systems without authorisation and used the information obtained for his tax advice.

The court ruled that the employee's conduct constituted a serious breach of the high standards of integrity required of him. It follows that the employee's actions were not merely culpable, but met the standards of seriously culpable conduct. This has serious consequences for the employee, who had been employed for almost 44 years: because the employment contract was terminated due to seriously culpable conduct, he is not entitled to a transition payment and the usual notice period is not taken into account.

The full judgment can be read here. .

Conclusion

This ruling shows that performing ancillary activities without permission, in violation of internal rules, and consulting systems for private matters can have far-reaching consequences for employees, even after a very long period of employment.

For employers, this ruling underlines the importance of clear rules on secondary employment and consistent enforcement of those rules. Although employers must have an objective justification for prohibiting ancillary activities, protecting the confidentiality of company information is sufficient grounds for such a prohibition.

Do you have any questions about drafting, enforcing or reviewing the ancillary activities clause or integrity regulations? The employment law specialists at SPEE advocaten & mediation are happy to assist you!