The notice prohibitions in cases of prohibited discrimination. In: Work and Security Bill (33 818), Commentary and Recommendations Working Group on Dismissal Law of the VvA, Association for Labor Law Series No. 41, Kluwer, Deventer 2014, pp. 79-82

Proposed Scheme

The bill aims to expand and (centrally) regulate the sanctions in case of a prohibited distinction as laid down in Articles 7:646 (equal treatment of men and women), 7:648 (distinction in terms of working hours), 7:649 (distinction in terms of the temporary nature of the employment contract), as well as in the AWGB, the WGBH/CZ, the WGBL and the WGBMV in the proposed Article 681 paragraph 1 sub b. Article 681(1)(b) provides that the employee may have the discriminatory termination annulled by the subdistrict court or request the subdistrict court to award fair compensation at the employer's expense. In connection with this, Sections 7:646, 7:648 and 7:649 are amended in a technical sense, Section 7:647 is deleted with the exception of the fifth paragraph of that section which is moved to the new paragraph 14 of Section 7:646. The switching provisions in the AWGB, the WGBH/CZ, the WGBL and the WGBMV are also adapted in a technical sense.

Comment

As a result of the proposed "technical adjustments," it is no longer possible for the employee to annul the notice of termination out of court in the event of discriminatory dismissal. With the proposed Section 681, the choice has been made to place the power to nullify with the court and not (anymore) with the employee. The consideration here is that the employer will usually disregard an extrajudicial termination by the employee (anyway) and simply will not pay wages. The legislator presents this regulation as a "simplification" for the employee, because now he does not have to wait and see whether or not the employer complies with his extrajudicial annulment before taking further steps. The Council of State does not consider the legislator's explanation to be supportable and recommends that the proposal be further substantiated and, if necessary, the text adjusted.