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 BHS v Burchell 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 honest answer is that 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
- Approval vs Review: The Dutch system generally requires approval before termination, whereas the UK system relies on post-hoc review under section 98 ERA 1996 to regulate employer behaviour.
- Settlement Leverage: Dutch procedure drives settlement before termination because the employer must show its hand early. In the UK, leverage often only materialises once the dismissal has occurred.
- Impending Convergence: As the UK moves towards Day-One rights and statutory probation periods, we are importing European-style thresholds without the bureaucratic machinery required to manage them.
We are eagerly adopting the continental dread of the tribunal, but entirely failing to import the procedural certainty required to survive it.