A highly skilled migrant has a special position under Dutch labour law. Indeed, the right to work in the Netherlands also comes with various obligations. If a highly skilled migrant is dismissed, he will have to find a job/workplace elsewhere within three months. This new job should also meet the applicable conditions. If the migrant does not find a new job, the IND will revoke the highly skilled migrant's residence permit and he will no longer be allowed to stay in the Netherlands. So for a highly skilled migrant, the consequences of termination of an employment contract tend to be greater than for an “ordinary” employee. A recent ruling by the Arnhem-Leeuwarden Court of Appeal shows that an employer would be well advised to take this into account when deciding whether or not to terminate a highly skilled migrant's employment contract.

Facts

Employee joined employer on 1 May 2022, with a probationary period of two months. Employee is a highly skilled migrant and for that reason holds a residence permit to work as a highly skilled migrant. Shortly before the expiry of the probationary period, employer and employee had a conversation. The parties disagree about the exact content of this conversation. What is certain is that employer did not dismiss employee during the probationary period.

On 14 July 2022, employer sent employee a long e-mail, to which employer replied a day later. As a result, there has been a hardening of relations.

On 3 August 2022, employer informs employee that it wishes to terminate the employment contract by entering into a settlement agreement.

Employee is released from work on the same day. The parties subsequently failed to conclude a settlement agreement, after which the employer instituted proceedings to dissolve the employee's employment contract.

Judgment of the Subdistrict Court

During the hearing in the first instance, the employee indicated that he no longer saw any point in returning to the employer and therefore resigned himself to dismissal, although the employee did indicate that he believed he was entitled to fair compensation because of serious culpability on the part of the employer. The Subdistrict Court agreed and awarded the employee fair compensation of €60,000.

The employer appealed against the decision of the subdistrict court.

Judgment of the court of appeal

The court of appeal also ruled that the employer had acted in a seriously culpable manner and that the employee was therefore entitled to fair compensation.

In short, the court of appeal is of the opinion that the employer's decision to seek termination of the employment contract was too big a step, exacerbating the hardening of positions and communication between the parties.

It is interesting to note the court's following consideration (r.o. 3.16):

““Moreover, it was known to the employer that termination of the employment contract meant that the residence permit in the Netherlands of the defendant and his family was at risk because within three months thereafter, he would have to find other paying employment with which he would have to earn at least €4,612 gross per month.”

The court here refers to the three-month search period granted to a highly skilled migrant if a highly skilled migrant unexpectedly loses his job. If the highly skilled migrant does not find a new job as a highly skilled migrant during the search period - with the conditions attached to a highly skilled migrant's residence permit - the highly skilled migrant must leave the Netherlands. This applies equally to the highly skilled migrant's family, as they have a residence right dependent on the highly skilled migrant.

Read the full judgement here.

Conclusion

This ruling confirms that employers employing highly skilled migrants should make well-considered decisions regarding the termination of the employment contract of a highly skilled migrant. After all, the fact that a highly skilled migrant is dependent on the employer for his residence permit (together with his family) can be seen as an aggravating circumstance in the context of the duty of care an employer must observe in the context of dismissal and the criteria that must be met. If you would like more information on this topic, or on other employment law topics, please feel free to contact one of the employment lawyers at SPEE advocaten & mediation. We will be happy to assist you!