Revoking Schiphol Pass = end of employment contract?

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Date:
07 Jun 2022

By:
Aimée Peterse

Employment contracts for employees working at Schiphol often include what is known as a resolutive condition. This condition means that if the employee's Schiphol Pass is revoked, the employment contract will end by operation of law with immediate effect. Until recently, courts ruled that this was a valid resolutive condition. The District Court of Noord-Holland recently rendered a different opinion. In response, we set out the criteria for including a valid resolutive condition in an employment contract and discuss why and how the court came to its decision.

Facts of the case

The employer, Menzies Aviation B.V. (hereinafter Menzies), has employed an employee since June 13, 2007. He holds the position of Flight Handling Coordinator. The employee's letter of appointment includes a resolutive condition.

On 28 July 2021, Menzies writes to the employee that it has been informed by the supervisor of Schiphol that the employee is marked as a suspect in an investigation into the import of narcotics at Schiphol Airport. During this investigation, the employee's Schiphol Pass was withdrawn. Menzies confirms to the employee that the employment contract has ended by operation of law, because the resolutive condition from the employment contract has entered into force. Shortly thereafter, the Public Prosecutor's Department informs Menzies that the employee had been charged with (preparing) the import of narcotics (i.e. 320 kilos of cocaine) via Schiphol.  

The employee’s representative takes the position that 1) the instant dismissal was unjustified and 2) the resolutive condition did not apply because the withdrawal of the Schiphol Pass was only temporary. The employee requests the court to annul his dismissal or to award him fair compensation in the amount of € 30,000 gross. Menzies in its turn requests (by way of a conditional counterclaim) the dissolution of the employment contract on the so-called h-ground (a dismissal ground), because it feels that the employment contract has become devoid of substance. 

Court ruling

The judge ruled that the employee had not been dismissed with immediate effect, since Menzies did not mention this in its dismissal letter. However, the judge does find that the resolutive condition was not validly invoked by Menzies.

In this case, the condition is invoked as a result of the fact that the employee is under suspicion of having committed a criminal offence, which then led to the withdrawal of the Schiphol Pass. According to the court, the mere fact that the employee is suspected of a criminal offence is insufficient grounds to invoke the resolutive condition, thus resulting in termination of the employment contract. After all, the presumption of innocence applies in the Netherlands. The court also takes into account that the employee had expressly denied having anything to do with the smuggling. Therefore, the resolutive condition is in conflict with the statutory dismissal system in the Netherlands. After all, after completion of the criminal investigation, the employment contract might possibly come into effect again.

The requested return to work was, however, rejected by the court, since the employee was unable to work without his Schiphol Pass. The requested dissolution on the h-ground was rejected, again because withdrawal of the Schiphol Pass due to criminal suspicion does not justify a termination in view of the presumption of innocence. Furthermore, Menzies failed to demonstrate that the suspicion had such grave consequences for the employment relationship or caused any other disadvantage (such as lack of trust) that the employee's position had become untenable. In addition, Menzies indicated at the court hearing that the employee would be allowed to return if acquitted.

Criteria resolutive condition

The Supreme Court has held that the employment contract under a resolutive condition is, in principle, permissible, albeit exceptionally. The employer can successfully invoke the resolutive condition if the following conditions are met:

  1. The condition must not be in conflict with the statutory dismissal system. For example, the resolutive condition may not imply that the employment contract ends if the employee becomes ill for a long period of time.
  2. The occurrence of the resolutive condition must be objectively determinable.
  3. The employer may not have any influence on whether the condition takes effect or not.
  4. The employment contract must have become devoid of substance as a result of the occurrence of the condition.

It should be assessed from the specific circumstances of a case whether a resolutive condition is legally valid. In (lower) courts, valid resolutive conditions include (i) discontinuing training in the case of an apprenticeship-employment contract, (ii) failing to obtain a vocational training diploma, (iii) failing to pass a Dutch language test, and (iv) withdrawal of the required statutory permission to perform the job. Until recently, the withdrawal of the Schiphol Pass (not a legal requirement), was also included in this list, but based on the above-mentioned judgement, this no longer seems to be the case.

What does this mean for you as an employer?

If your employees work at Schiphol with a Schiphol Pass, there is a good chance that a resolutive condition (if any) in the employment contract can no longer be invoked. More generally, as an employer you should critically examine any resolutive condition in light of this judgment. Incidentally, the resolutive condition may come under further pressure as a result of the Act Transparent and Predictable Employment Conditions, which is yet to be introduced. Under that Act, it must be made clear how the employment contract can be terminated.

We will keep a close eye on developments in this area.

Do you have any questions about the use of a resolutive condition as a result of this article? Please do not hesitate to contact us. We will be happy to help you.