Reorganization and pregnancy in the Netherlands: your rights

What does this mean for you?

This page explains your rights under Dutch employment law. It is written for employees who work in the Netherlands, including highly skilled migrants and other internationals who were recruited to come here. If you are employed under a Dutch contract, the following protections apply to you regardless of your nationality.

During your pregnancy a dismissal ban applies: in principle your employer may not give notice of termination (Article 7:670(2) of the Dutch Civil Code, BW).

This ban applies during your pregnancy, during your maternity leave (zwangerschaps- en bevallingsverlof), and for six weeks after you have resumed work following that leave. A reorganization does not change that in itself.

Two forms of protection at once

In addition, a second and independent protection applies. Dismissal or less favourable treatment because of pregnancy is prohibited under the equal treatment of men and women (Article 7:646 BW).

Your pregnancy may therefore not influence the selection or your treatment during the reorganization in any way. The dismissal ban and the prohibition of discrimination stand separately and reinforce your position.

Your position can still be eliminated

This does not mean that your position cannot be eliminated. Your employer may reorganize and abolish your position.

If your employer then wants to dismiss you for business economic reasons, permission from the UWV (the Dutch Employee Insurance Agency) is required. In principle it will not be granted for as long as the dismissal ban applies.

There are some exceptions, and there is one pitfall: signing a settlement agreement, which gives up your protection voluntarily. We discuss both below.

Your protection around pregnancy

Dismissal ban during pregnancy and leave (Art. 7:670(2) BW)
Also for six weeks after resuming work following maternity leave
Prohibition of dismissal or disadvantage because of pregnancy (Art. 7:646 BW)
The UWV refuses a dismissal permit while a dismissal ban applies, unless a statutory exception applies
Pregnancy and maternity benefit (WAZO) paid through the UWV
In most cases upon dismissal: entitlement to at least the statutory transition payment
The right to legal advice before you sign anything

What matters in a reorganization

Your position is determined by the interplay between the dismissal ban, the prohibition of discrimination and the selection. Whether an exception applies in your case depends on the precise circumstances.

Pregnancy is not a selection criterion

When it is determined who becomes redundant, your pregnancy may not be taken into account in any way. This means not only that you may not be selected first, but also that you may not be given a lower assessment, may not be labelled less suitable, and may not be excluded from reassignment or a suitable position on the ground of your pregnancy. Less favourable treatment because of pregnancy amounts to prohibited distinction on the ground of sex. The reorganization must rest on objective, business economic grounds that are unrelated to your pregnancy.

Exceptions to the dismissal ban

The dismissal ban during pregnancy is strong, but not absolute. It does not apply, among other situations, during a probationary period, on summary dismissal for urgent cause, in a bankruptcy, when a fixed-term contract expires by operation of law, and not if you yourself agree to termination in writing. On a full closure of the business the dismissal ban may lapse as well. That last exception does not apply, however, for as long as you are on maternity leave: during that leave the law protects you all the more, so that even a business closure cannot then simply end your employment.

The reflection principle still includes you

As a pregnant employee you are simply included when the reflection principle (afspiegelingsbeginsel) is applied. You can therefore be designated as redundant under the ordinary rules. The dismissal ban subsequently prevents your employment from actually ending by notice during the protected period.

Your leave benefit continues

Your pregnancy and maternity benefit (WAZO) is paid by the UWV. If your employment ends while you are on leave, the UWV in principle continues to pay the benefit. Even if your employment ends shortly before the birth, a safety-net arrangement may provide an entitlement to the benefit where the birth falls within ten weeks after the end of your employment.

The pitfall: do not sign a settlement agreement without advice

The dismissal ban and the prohibition of discrimination do not protect you if you yourself agree to termination. If you sign a settlement agreement (vaststellingsovereenkomst), you give up precisely that strong protection voluntarily.

You give up your protection

The dismissal ban ends because the employment contract ends, and other entitlements arising from your employment lapse as well. Any claims on the ground of discrimination, by contrast, may continue to exist even after termination.

A settlement agreement moreover usually contains a full and final discharge (finale kwijting). This generally means that the parties waive further claims against each other, to the extent that these fall under the arrangements made. It is often difficult to revisit that afterwards.

Watch out for your unemployment benefit

A termination by mutual consent can have consequences for a later unemployment benefit (WW). The UWV looks, among other things, at whether there is culpable unemployment, whether the notional notice period (fictieve opzegtermijn) has been observed, and whether the agreement is correctly worded.

Your pregnancy and maternity benefit is often better safeguarded through the UWV, but the interaction with the WW and the timing of the termination are a close matter. Therefore, before signing, have it assessed what a proposal means in your specific situation.

Sometimes an arrangement is sensible

This does not mean that an arrangement is never sensible. Sometimes there is a good reason and an arrangement can be structured carefully. It does mean that you should not sign a proposal during pregnancy or leave without having the consequences assessed beforehand.

Before you sign anything

Do not sign anything without a legal assessment of the proposal
Have it checked what the proposal does to your WW rights and the timing of termination
Bear in mind that by signing you give up the dismissal ban and the protection against discrimination
Note that after signing you have 14 days of statutory reflection time (Art. 7:670b(2) BW)
Do you feel pressure to sign quickly? That is precisely a reason to seek advice first

Do you suspect that your pregnancy is a factor?

Sometimes a reorganization is given as the reason, while you feel that your pregnancy is in fact playing a role.

Consider a selection that changes shortly after you announce your pregnancy, or treatment that differs from colleagues in a comparable position. In that case the law assists you in a particular way.

The burden of proof lies largely with your employer

Where there is a suspicion of distinction on the ground of pregnancy, a shared burden of proof applies. If you put forward facts that can suggest a distinction, it is then for your employer to prove that your pregnancy played no role. That makes your position stronger than in an ordinary dismissal discussion.

Additional ways to strengthen your position

Where pregnancy discrimination is suspected, there are more routes than the ordinary dismissal discussion. An authoritative opinion on the alleged distinction can be requested from the Netherlands Institute for Human Rights (College voor de Rechten van de Mens). Such an opinion is not binding, but carries weight in a negotiation or procedure. In addition, the subdistrict court can award compensation where a distinction is established, for example fair compensation (billijke vergoeding) or damages.

We assess your full situation and the proposal on the table, and determine which route achieves the most in your case: challenging the selection, invoking the protection against discrimination, or negotiating a better arrangement. That keeps you in control.

Sensible steps to take

Record when you announced your pregnancy and to whom
Keep correspondence about the reorganization and the selection
Note any differences in treatment compared with comparable colleagues
Discuss your concern with a confidential adviser or a lawyer
Put in writing that you are concerned your pregnancy is a factor

What you can do now

If you are pregnant and your employer announces a reorganization, it is wise to take the steps below. The sooner you map out your position, the more options there are.

Ask your employer for a written explanation of the reorganization and of what this means for your position
Ask how the selection was made and which criteria were used
Keep all correspondence, meeting reports and documents you receive
Have a proposal assessed legally first, including what it does to your WW and leave rights, before you agree

Also unfit for work due to the pregnancy?

If, in addition to being pregnant, you are also unfit for work, for example due to pregnancy-related complaints, the dismissal ban during illness applies as well. Pregnancy-related incapacity and ordinary illness are governed by partly different rules; which applies to you depends on your situation.

ReorgLegal assesses your full situation: the reorganization, the selection, your pregnancy and leave, and a proposed exit package. On that basis we determine what protection you have and what would be a reasonable outcome in your situation.

Frequently asked questions

Can I be dismissed while I am pregnant?
During your pregnancy, your leave and six weeks after resuming work a dismissal ban applies. In principle your employer cannot give notice of termination and the UWV usually does not grant permission for it, subject to a few exceptions. If your employer applies to the subdistrict court for dissolution of the contract, in principle the same protection applies.

May my pregnancy be taken into account in the selection?
No. Pregnancy may not be a selection criterion. Less favourable treatment because of pregnancy is prohibited distinction on the ground of sex.

What happens to my leave benefit if my contract ends?
The pregnancy and maternity benefit is paid by the UWV and in principle continues, even if your employment ends while you are on leave.

Do I have to sign a settlement agreement?
No. By signing you give up the dismissal ban and the protection against discrimination. Always have a proposal assessed first.

Reorganization and pregnancy in the Netherlands