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22 Mar 2022 Has the obligation to give notice been met or not?

Employer and (a sick) employee disagree on the question whether the (written) notice obligation of the employer has been fulfilled, if a fixed-term employment contract is not continued/extended. What does the judge think?

Article 5 of employee's employment contract stipulates that the employment contract ends by law on 30 September 2021. However, in April 2021, the employee became ill.

Since then, she has not resumed her work at iHUB. On 25 August 2021, a video interview took place between iHUB and employee. During that interview, iHUB informed employee that her employment contract would expire on 30 September 2021 and would not be renewed. By email dated 27 August 2021, iHUB informed employee of the termination of the annual contract. The employee requested that iHUB be ordered to pay the employee the compensation in lieu of notice.

Since the present procedure concerns a fixed-term employment contract for more than six months, iHUB, as the employer, has a so-called obligation to give notice pursuant to Section 7:668 of the Dutch Civil Code at the end of that employment contract.

According to this provision, the employer has to inform the employee in writing not later than one month before the end of a fixed term contract of employment, whether the contract will be continued and, if it will be continued, under which conditions the employment contract will be continued. It is, however, expressly required that the employer gives such notice in writing.

The employee acknowledges that on 25 August 2021 iHUB informed him during a video conference that the employment contract would not be extended until 30 September 2021. As a result of that conversation, iHUB subsequently sent a so-called 'step-by-step plan' to the employee by e-mail on 27 August 2021.

The subdistrict court is of the opinion that with this email iHUB provided sufficient clarity as to whether or not the employment contract would end. The opening lines of the email refer to the termination of the annual contract and further state what can be expected from the employee in relation to this, such as that she will leave sick, will be reported to the UWV and that iHUB will arrange a final settlement of her holiday entitlement and accrued year-end bonus. In addition, iHUB stated in that e-mail that the employee would receive a formal letter of termination.

The email was therefore clearly aimed at providing information about the continuation of the working relationship. The fact that the employee did not receive the formal letter of termination mentioned in the e-mail, irrespective of the risk of the employee, does not alter the above. After all, the employment contract stipulates that the employment contract ends by operation of law on 30 September 2021.

Therefore, notice of termination by iHUB is not required. Furthermore, apart from the requirement of being in writing, no requirements are set on the content of the notice. After receiving the e-mail and the preceding verbal notification on 25 August 2021, it was clear to the employee that her employment contract would end.

The end date of the employment contract was also known to the employee. It was neither proven nor established that iHUB, after its verbal and written communications, made other communications that would cause doubt or uncertainty for the employee as to whether or not the employment contract would end.

You can read the decision of the subdistrict court here.

Would you like to know more about this judgment, about the duty to give notice, or about other subjects of employment law? Please feel free to contact one of the lawyers at SPEE advocaten & mediation.

SPEE advocaten & mediation Maastricht

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