Employer's duty to investigate employee termination: 'Figure it out!' April 2022, Labor Law 2022/17

The Supreme Court's recent TUV ruling deals with the employer's duty of investigation in the event of employee termination. A cursory reading of the ruling may give the impression that the Supreme Court is adding nuance to its established case law on the subject. But is this really the case? The authors first discuss the legal framework and previous Supreme Court case law. They then discuss the Supreme Court's recent ruling. Finally, because for the answer to the question of whether an employer has a duty to investigate, the context in which the notice was given is important, the authors look at the rulings of lower courts over the past five years and discuss whether they are in line with Supreme Court case law. (with Michelle Kind)

1. How about this?

A termination by the employee is a unilateral legal act addressed to the employer. A legal act is created by a will directed to legal effect which reveals itself by a declaration (Art. 3:33 BW). In the case of the notice of termination, the will must be aimed at termination of the employment contract. The declaration of termination is in principle free of form and may also be contained in a conduct (Art. 3:37 (1) BW). It regularly happens that the employer hears or reads something different from what the employee intended (afterwards). What steps are important in assessing whether the employer can hold the employee to his notice? We have listed a number of steps below.

1.1 Clear and unambiguous statement

Termination can have serious consequences for the employee, such as loss of severance protection and entitlement to benefits. Therefore, the employer should not assume too easily that the employee intends to terminate his employment contract. Case law has developed a strict standard for assuming...

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