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16 May 2023 New Implementation Rules on dismissal for business economic reasons: the main changes

The UWV recently published new Implementation Rules on dismissal for business economic reasons on its website (version April 2023). This article summarizes the most important changes for you.

Base dismissal request on multiple business economic reasons

An employer may base the request for dismissal for economic reasons on more than one economic reason, e.g. work reduction and organizational or technical changes. In that case, the employer must substantiate both economic reasons. Although it was previously possible to base a request for dismissal on more than one economic reason, the UWV has further clarified this in the new Implementation rules.

Ban on dismissal of sick AOW recipients

Section 4.2.1 of the new Implementation Rules states that the transitional right for employees who have reached the state pension age is expected to expire as of 1 July 2023, so that the notice ban for sick state pensioners will be shortened to six weeks (instead of 13 weeks) from that date.

Collective Redundancy Notification Act (WMCO)

Collective redundancy occurs when an employer wants to terminate the employment contracts of 20 or more employees within a three-month period for economic reasons.

When there is collective redundancy, the employer must comply with the rules of the WMCO. The employer must then report the intended dismissal to the UWV and the trade unions with members in the employer's company, that the intention of a collective dismissal exists. Usually, the works council (OR) should also be consulted.

In the new Implementation Rules of the UWV, with regard to the WMCO, a number of changes have been included.

Expansion based on European case law
Section 5.3.6 explains that if the employer unilaterally proceeds to a substantial change of essential elements of the employment contract for reasons not related to the individual, the termination of the employment contract within the meaning of the Collective Redundancy (Notification) Act falls within the scope of the WMCO. Think part-time dismissal, but also an offer of transfer or reassignment, under the threat of dismissal.

On-call contracts
Section 5.3.7 explains when on-call and min/max contracts constitute termination of the employment contract within the meaning of the WMCO.

Debt rescheduling scheme for natural persons
Dismissals due to bankruptcy fall under the notification obligation of the WMCO. It has been added to section 5.3.8 that this also applies in the case of dismissals due to application of the debt restructuring scheme for natural persons (WSNP).

Provisional application
A provisional dismissal application counts towards the numerical criterion of 20 or more intended dismissals in the context of whether or not the WMCO applies.

Seemingly self-employed
If the employee argues that the UWV should not process dismissal applications because the employer wrongly did not include the dismissal of bogus self-employed workers, the UWV will not investigate. As long as the court has not ruled that there is an employment contract, the UWV will not count it for the purposes of the WMCO.

Attribute to three-month period
Section 5.7.2 explains that after receiving a dismissal request for business economic reasons, the UWV will consider whether there are 20 or more dismissals within a three-month period, as a result of which a notification must or should have been made. By "shifting" the time period three months from the date three months before submission of the dismissal request to the date on which the dismissal request is submitted, it is possible to see whether there is a three-month period within which there have been collective redundancies, as a result of which a notification must, or should, have been made.

Expired job but no dismissal yet

In appropriate cases, an employer may find that the job of an employee for whom no request for dismissal has been submitted (yet) has also been or will be lost, but that the employer does not intend to dismiss that employee within a period of three months. Section 5.7.5 of the Implementation Rules, indicates, that in that case, for that employee, there is not yet an intention to dismiss within the meaning of the Collective Redundancy (Notification) Act (WMCO), which means that that employee/the workplace of that employee does not have to be included in the number criterion of the WMCO (20 employees).

Summary

Submitting an application for dismissal based on economic grounds to the UWV can be done by the employer, but given the number of (complex) rules, it is highly recommended to hire a specialized labour lawyer to guide the application and the process, especially in case of collective dismissal. It is also advisable for employees faced with (collective) dismissal to seek timely help and advice from a specialized labour lawyer. The employment lawyers at SPEE advocaten & mediation will be happy to assist you!

SPEE advocaten & mediation Maastricht

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