From a recent ruling of the Supreme Court it follows that a reduction in working hours can lead to the employer’s obligation to pay a partial transition payment.
In this case a female teacher in secondary education had an almost full-time appointment. After a period of long-term incapacity for work, she received a partial WIA benefit. The employer then reappointed her as a teacher, but for 0.55 FTE. She received a Deed of Dismissal and a Deed of Appointment for this. The Court of Appeal found that although the parties, according to the statements they had made to each other, had terminated the existing employment contract and had entered into a new employment contract, in fact they had only intended to adapt the existing employment contract to the employee’s partial incapacity for work.
The Supreme Court does not agree with this. Under the legal framework, an employment contract may only be terminated or dissolved in its entirety. Nevertheless, the possibility of partial dismissal, together with the entitlement to a partial transition payment, must be accepted for the specific case in which, compelled by circumstances, a substantial and structural reduction of the employee’s working hours is implemented. According to the Supreme Court, this may include the necessarily partial elimination of jobs due to economic circumstances and the employee’s permanent partial incapacity for work. The employee would otherwise, in the event of a substantial and structural reduction of working hours, lose part of the transition payment to which he would be entitled upon a complete termination of the employment contract at that time.
The follow-up question will therefore now be when there is or is not a ‘structural and substantial reduction’ of the working hours….
