The visiting Dutch practitioner, arriving in London for the first time, often reacts to our unfair dismissal regime with a mixture of horror and professional envy. In the Netherlands, the idea that an employer can simply terminate a contract and deal with the fallout later is considered a legal hallucination. There, the preventatieve toets (preventive assessment) ensures that the blade is inspected by a third party before it is ever used.
Under the Dutch system, an employer seeking to terminate a contract must generally choose one of two paths under Book 7 of the Civil Code (Burgerlijk Wetboek). For redundancy or long-term sickness (the 'a' and 'b' grounds under Art. 7:669 BW), they must obtain permission from the UWV. For performance, conduct, or 'disturbed relations' (Art. 7:671b BW), they must apply to the Cantonal Court (Kantonrechter) to have the contract dissolved. The dismissal is not the starting gun for litigation; it is the prize at the end of it.
Contrast this with the UK’s ex post facto model. We dismiss first and ask questions, often expensive ones, later. The British Home Stores Ltd v Burchell [1980] ICR 303 framework is not a gatekeeper; it is a retrospective lens through which a Tribunal reviews a decision that has already taken effect under section 98 ERA 1996. In the UK, the damage is done at the point of termination; the Tribunal merely decides who pays for the wreckage.
the UK system prioritises labour market flexibility over job security. By allowing employers to dismiss and then litigate, we reduce the perceived risk of hiring. A Dutch employer, facing a three-month wait for a UWV decision and a mandatory transition payment (transitievergoeding) capped at €94,000, is understandably more cautious about signing the contract in the first place. We trade certainty for speed, and practitioners on both sides of the North Sea spend much of their time managing the resulting anxieties.
For practitioners, the real difference is timing. The Dutch requirement to persuade a third party creates a structural 'cooling off' period that the UK lacks. We are forced to recreate this experience in the shadows via s.111A 'protected conversations', sliding a settlement agreement across a table under the threat of future litigation. In the Netherlands, the negotiation happens before the exit; in the UK, it often only begins once the P45 has been issued.
Yet, the Dutch system has its own evasions. A claim of 'disturbed relations' often becomes a self-fulfilling prophecy: once an employer applies to the court to dissolve a contract because they can't work with the employee, there is usually little left to rescue. The preventive check then risks becoming less a safeguard than a supervised route to an outcome both sides already expect, albeit one with a court-mandated price tag.
Practical takeaways
- Identify the Dutch route before advising on timing: redundancy and long-term sickness go to the UWV under the 'a' and 'b' grounds of Art. 7:669 BW, while conduct, performance and 'disturbed relations' go to the Kantonrechter for dissolution under Art. 7:671b BW.
- Build two figures into any Dutch timetable: the three-month wait for a UWV decision and the mandatory transitievergoeding, capped at €94,000.
- Expect the negotiation before the exit in the Netherlands and only after the P45 here. Treat s.111A protected conversations as the UK's substitute for a structural cooling-off period: they run under the threat of litigation rather than ahead of it.
- Treat a 'disturbed relations' application as the end of the relationship rather than a test of it. Once the employer has asked the court to dissolve, there is usually little left to rescue: the preventive check becomes a supervised route to an outcome both sides already expect.
- Do not assume Day-One rights and statutory probation will import Dutch-style caution. Without a UWV or Kantonrechter step, employers will still dismiss first and answer for it afterwards.
The convergence is therefore partial: the UK is taking on the continental threshold for dismissal without the administrative machinery that makes it workable.