The cooling-off period at the termination of an employment contract

Published by: Bernard Bongaards posted on 29 December 2016 reading time

With the introduction of the Work and Security Act (WWZ), the cooling-off period was also introduced into our labour law. If an employer and employee conclude a termination agreement, the employee has the option of changing his mind within two or three weeks and dissolving the termination agreement after all. The two-week period applies if the termination agreement explicitly refers to the cooling-off period; the three-week period applies if this is not the case. Incidentally, this cooling-off period applies only when employer and employee conclude a termination agreement. The cooling-off period does not apply if the employee gives notice of termination.

In the very limited case law available to date, no clear line can be found as to when exactly the cooling-off period starts running. Some courts have ruled that it only starts to run once the employee has actually signed the termination agreement. Since there is sometimes some time between agreement on a termination agreement and the actual signing, this is obviously important. The other doctrine is that it is important when an agreement has been reached in writing, and this may already be the case when the correspondence shows that the employee (possibly through his lawyer) has clearly agreed to the termination agreement.

Furthermore, it is important to know that the reflection period does not apply to the director of a legal entity. In short: the director under the articles of association cannot make use of the reflection period. In addition, an employee who has made use of the reflection period cannot use it again within six months. This last provision is intended to prevent abuse.

The advice remains - certainly now that there is no unambiguous line in case law - to actually have the employee sign the agreed termination agreement as soon as possible.

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