Voluntary departure in a reorganization
In a reorganization your employer sometimes offers an arrangement to leave voluntarily, often with compensation. Such an offer can be attractive, but it is a starting point. What you receive, and whether it is favourable for you, is open to negotiation.
What is voluntary departure in a reorganization?
This page explains voluntary departure under Dutch employment law, for employees who work in the Netherlands, including highly skilled migrants and other internationals. Voluntary departure here means that you and your employer agree together that your employment ends, for business economic reasons. This almost always happens through a settlement agreement, a termination by mutual consent (Article 7:900 of the Dutch Civil Code, BW).
An offer from your employer
To reduce headcount, an employer often first offers a voluntary departure arrangement. You are not forcibly dismissed; you receive a proposal to leave of your own accord, sometimes with attractive compensation.
This proposal can be part of a social plan, for example as a voluntary departure or place-maker arrangement. The terms differ from case to case.
Why this can be attractive for you
You keep more control yourself: over the moment of departure, over any release from work and over the compensation. And because the departure runs through a settlement agreement, your right to unemployment benefit (WW) is in principle retained where the arrangement is correct. Below you can read what this depends on.
In brief
- Runs through a settlement agreement, by mutual consent
- Your employer offers it for business economic reasons
- Sometimes with compensation on top of your statutory entitlement
- The first offer is a starting point, not an end point
- With a correct arrangement your WW is in principle retained
- Have the offer assessed before you sign
What you can negotiate
A departure proposal is an offer, not a final word. On the following points there is often value to be gained.
The compensation
If no binding social plan applies, the amount of the compensation is often still open to negotiation. The statutory transition payment is frequently used as a guideline, and with a voluntary departure there is regularly room for more.
End date and notice period
The end date and the notice period partly determine when your WW starts and whether you still receive salary. A release from work until the end date is often open to discussion.
Final discharge
With the final discharge the parties declare they owe each other nothing further. It is important that you know which claims you give up with it, such as a bonus, holiday days or other payments.
Clauses and support
A non-compete or non-solicitation clause can lapse or be relaxed on departure. Outplacement, a training budget and a positive reference are also part of the negotiation.
When is voluntary departure sensible?
Whether voluntary departure is sensible depends on your situation. For one person it is an opportunity, for another it is a moment to wait and seek advice first.
Often an opportunity
- You already have another job in prospect
- You were planning to leave anyway
- Your position is likely to disappear regardless
- The compensation offered is attractive
- You are approaching state pension age
Be careful or wait
- You are ill or in a reintegration process
- You are pregnant or on leave
- There is discussion about the reflection principle
- The social plan is not yet known
- You have a non-compete or non-solicitation clause
- Your employer is pressing you to sign quickly
If in doubt, do not sign straight away. Leaving during illness, pregnancy or an ongoing reintegration can work out unfavourably for your benefit. We assess whether voluntary departure is sensible in your case.
Voluntary departure or dismissal via the UWV?
If you do not accept a voluntary offer, your employer can take the route of a dismissal procedure at the UWV. The two routes differ on important points.
Voluntary departure
- You negotiate the terms yourself
- Usually settled more quickly
- More influence on compensation and end date
- Recorded in a settlement agreement
- A reflection period of fourteen days
Dismissal via the UWV
- The UWV assesses the dismissal request
- Generally a longer procedure
- Less influence on the terms
- Employer must demonstrate reflection and reassignment
- If permission is granted, notice follows with a transition payment
Which route is more favourable for you depends on your situation. Sometimes the certainty of a good settlement agreement is more attractive than a procedure; sometimes you are in a stronger position in a procedure.
Do you keep your right to WW?
With a voluntary departure in the context of a reorganization, your right to unemployment benefit (WW) is in principle retained, provided the settlement agreement is drawn up correctly.
What it comes down to
The UWV looks at whether the departure cannot be attributed to you. For that it matters that the agreement states a neutral ground for termination, that the initiative lies with your employer and that the notice period has been observed.
Precisely because it runs through a settlement agreement, and not because you resign yourself, this is as a rule not regarded as culpable unemployment. The wording of the agreement is important, but the UWV ultimately assesses the full situation. That is a reason to have the agreement checked.
What the agreement should arrange
- A neutral ground for termination: business economic reasons
- That the initiative lies with your employer
- That no blame attaches to you
- An end date that respects the notice period
- Clarity on compensation, release from work and clauses
Is this a good departure offer?
You do not judge an offer on the compensation alone. Look at the whole package, because that is often where the value lies.
More than just the amount
Two offers with the same compensation can differ greatly once you look at the rest: the release from work, an outstanding bonus, your holiday days, a lease car, pension accrual up to the end date and whether a non-compete clause still applies.
What you can negotiate for
Besides a higher compensation, it is often possible to negotiate a longer release from work, keeping a bonus, retaining a lease car for longer, dropping a non-compete or non-solicitation clause, a contribution to your legal costs and a more favourable end date. Small changes can together make a big difference.
Check the following
- The amount of the compensation
- Release from work until the end date
- Bonus and holiday days
- Lease car and other benefits
- Pension accrual up to the end date
- Non-compete and non-solicitation clause
- A contribution to your legal costs
- A positive reference
- The end date and the notice period
The offer is a starting point
A departure proposal often feels like a ready-made package, but you do not have to sign straight away and you may negotiate.
You decide yourself
You are not obliged to accept a voluntary offer. If you do not agree, your employer can still start a dismissal procedure, provided there is a reasonable ground for dismissal and the statutory conditions are met. The ordinary rules then apply, such as the reflection principle and the obligation to seek reassignment. That fact partly determines your negotiating position.
You have a reflection period
If you have signed, you can dissolve the settlement agreement within fourteen days without giving reasons (Article 7:670b BW). If this right is not stated in the agreement, the term is three weeks. This reflection period gives you room, even if you signed under pressure.
Why an assessment is worthwhile
There is regularly room to negotiate, and not every agreement is drawn up well. We assess whether the offer is reasonable, whether your WW is safeguarded and whether there is room for a better arrangement.
Mind the pressure
- "You must sign today" is no reason to agree in haste
- Ask for the proposal in writing and for time to consider
- Compare the offer with what a regular procedure would yield
- Have the agreement assessed before the reflection period expires
What you can do now
If you receive a voluntary departure proposal, it is wise to take the steps below before you sign. The sooner you know your position, the more room there is.
- Ask for the full proposal in writing, with the compensation and the terms
- Find out whether a social plan applies and what it means for you
- Check that the ground for termination is neutral and the initiative lies with your employer
- Watch the end date, the notice period and any release from work
- Do not sign a settlement agreement without having the offer and your situation assessed
We assess whether the offer is reasonable, whether your WW is safeguarded and whether there is room for a higher compensation or better terms. Please feel free to contact us to discuss your situation.
Frequently asked questions
Do I lose my WW if I leave voluntarily?
In a reorganization, voluntary departure runs through a settlement agreement. If it is drawn up correctly, with a neutral ground and the initiative with your employer, your WW is in principle retained.
Do I receive compensation?
Usually yes, but the amount is not always fixed. Under a binding social plan the compensation is often set; otherwise there is regularly room to negotiate.
Do I have to agree?
No. If you do not agree, the ordinary rules apply in a dismissal procedure, such as the reflection principle and reassignment.
Can I go back after signing?
You can dissolve the agreement within fourteen days, or within three weeks if this right is not stated in the agreement.
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