When determining whether an employee is entitled to payment of salary, the following principle has applied since 1 January 2020 pursuant to Section 7:628 of the Dutch Civil Code: no work, still pay unless the non-performance of work must reasonably be attributed to the employee.

This means that the law assumes that if an employee does not work or only partially performs the agreed work, the employer must in principle pay the full salary. The employer is only not liable to pay salary if in all reasonableness the non-performance of work should be at the expense of the employee.

The employer will have to demonstrate that the employee is unwilling to perform the work and that the inability or unwillingness to perform the work is for the employee’s account. If an employer cannot demonstrate this, the employer will, in principle, be obliged to pay the employee’s salary.

What situations can you think of?

In the case of no work, no pay, you should think of an employee who participates in a strike, a prison sentence or is in pre-trial detention or an employee who is late for work or refuses to perform his work without good reason.

No work, still pay is an issue, for example, when an employer wrongfully dismisses or improperly terminates the employment contract. Another example is a situation in which a work permit (tewerkstellingsvergunning) or an export control license is not issued yet or may not be issued at all, even though an employee has provided all the necessary information to apply for a work permit or export control license correctly and on time. Furthermore, you can think of the normal business risks such as illness of an employer, insufficient orders or insufficient raw materials to make products.

Despite the principles and allocation of risk formulated above, it usually depends on the specific facts and circumstances whether an employee is entitled to continued payment of salary. For example, not working due to corona may lead to continued salary payment by the employer in one situation and not in another.

If you think you have a claim for salary or if you would like advice on the existence of an obligation to continue to pay salary, you can contact employment lawyer Evy Panneflek of AdvocatenvanOranje.

EVY PANNEFLEK

EVY PANNEFLEK

Advocaat

Evy Panneflek is een gepassioneerd advocaat sinds 2009. Ze houdt zich voornamelijk bezig met het onderhandelen, adviseren en procederen in arbeidszaken , huurzaken en bijstandszaken. Haar passies zijn quality time doorbrengen met familie en vrienden en Spanje.