A look back at Dutch co-determination law in 2025

Right of Consent

Termination of Share Plan

A Dutch company, part of an international group, sought to terminate a share plan without the works council’s consent. The works council withheld its consent and declared the decision to terminate the plan void. The company then requested substitute consent from the subdistrict court. The Gelderland District Court ruled that the share plan constituted an employment condition, and its termination fell under Article 27 WOR. The fact that the decision was made by the parent company did not change this, as the parent’s decision directly affected the secondary employment conditions of a relevant group of employees. Substitute consent was denied because the works council’s refusal was not deemed unreasonable, especially given the lack of (additional) compensation.

Change to Bonus Scheme

In the appeal case of PPD/Thermo Fisher, the Hague Court of Appeal overturned the Rotterdam District Court’s decision that the transition from the Long-Term Incentive Program (LTI) to the Thermo Fisher Equity Award Program (EAP) after an American takeover was subject to the right of consent. Under the LTI, all employees in salary scale 8 and above received a guaranteed bonus. Under the EAP, the award depended on performance, budget, and nomination.

The district court found that this transition fundamentally changed the assessment framework: previously, every employee in the scale was entitled to a bonus, but now only a limited group would receive it. The court saw this as a break in the pattern, as the internal ranking of rewards changed.

However, the Court of Appeal reached the opposite conclusion. According to the court, there was no change to the remuneration system. The groups eligible for long-term rewards remained the same, as did the purpose of the scheme—long-term rewards for higher positions. The fact that the award was no longer guaranteed, but dependent on performance and budget, only affected the amount and distribution of the reward, not the system of valuation between positions.

Change to Hybrid Working Policy

Asus Europe wanted to increase the number of mandatory office days within a hybrid working scheme, without the works council’s consent. The Amsterdam District Court ruled that a homeworking or hybrid working policy qualifies as a working conditions regulation, and is therefore subject to the works council’s right of consent. The policy cannot be changed without the works council’s approval. This decision confirms that structural changes to homeworking policies require works council consent.

Extra-Statutory Right of Consent?

The works council claimed it had acquired an extra-statutory right of consent regarding the meal allowance scheme. The council relied on Article 32(2) WOR, arguing that the scheme had been introduced with its consent in 2013 and could not be changed without its approval. The Hague District Court ruled, however, that if there is no written agreement establishing such a right, it must be determined whether the right was agreed in another way. The works council must present facts and, if disputed, provide evidence from which this can be inferred. The council failed to do so. The court noted:

• No written agreement existed establishing an extra-statutory right of consent.
• The manual, email correspondence, and meeting records did not unequivocally show that such a right was agreed.
• The works council could not rely on the existence of a right of consent based on silence or the employer’s failure to object after the council invoked the nullity of a decision.

Right to be Consulted

Group Decision Without Local Assessment

Micro Focus made a group-level reorganization decision resulting in twelve redundancies in the Netherlands and presented this to the Dutch works council without sufficient local information. The Enterprise Chamber ruled that the information provided to the works council was insufficient, as there was no clear substantiation of the impact on the Dutch organization or an independent balancing of the group’s interests against local interests.

Referring to a global Business Optimization Plan was not enough; local consequences must also be made clear. The conclusion was that Micro Focus, in weighing the relevant interests, could not reasonably have reached its decision.

Insufficient Consultation Process

In this case, the right to be consulted was central. Escience made a strategic decision with significant consequences for the organization and staff, without waiting for the works council’s advice. The Enterprise Chamber explained that two conditions must be met before a director may take a decision without waiting for the works council’s advice: (i) the works council must have had sufficient opportunity to advise, but failed to do so in time, and (ii) it would not be reasonable to expect the entrepreneur to wait any longer. The Enterprise Chamber concluded that Escience, in weighing the relevant interests, could not reasonably have reached its decision.

Miscellaneous

Confidentiality

This case centered on whether a transport company could reasonably impose confidentiality on the works council regarding a decision not to tender for a public transport concession in a certain region. The works council wanted to consult the workforce and unions, partly because staff might transfer to another entity within the group rather than to the concession holder. The entrepreneur argued that disclosure of this information was commercially sensitive and could be harmful in the tender process. The subdistrict court ruled in summary proceedings that the entrepreneur could reasonably impose confidentiality. The works council could discuss alternative scenarios with the workforce, as long as it did not reveal that not tendering was the intended strategy. Confidentiality under Article 20 WOR can therefore be justified for strategic and commercially sensitive decisions, provided the works council retains sufficient scope to perform its co-determination duties within reasonable limits.

Establishing a Joint Works Council

In this appeal, the Amsterdam Court of Appeal ruled that Albert Heijn could reasonably decide to establish a joint works council (GEMOR). The court found it sufficiently plausible that, given the organization’s structure and the interconnection of group companies, establishing a GEMOR would promote proper application of the WOR in the relevant companies.

Reflection

The 2025 case law once again confirms that co-determination is not a mere formality. Whether it concerns the right of consent for homeworking policies, consultation on reorganizations, or the boundaries of confidentiality: co-determination plays a crucial role in many areas.

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