Noord-Holland District Court, 4 March 2025, ECLI:NL:RBNHO:2025:2134
In this case, an employer was ordered to pay damages and outstanding holiday allowance to a long-term incapacitated employee, because it had wrongly failed to respond to several requests to terminate the employment contract with payment of a transition payment — a so-called “Xella request”.
Facts
The employee had worked for the employer since 1 September 2006 and became unfit for work on 17 December 2021. On 15 December 2023, the employer’s obligation to continue paying wages ended and the employee was awarded a WIA (occupational disability) benefit, after which the employer kept her employment contract dormant.
Between February and December 2024, the employee repeatedly requested, in writing and by email, termination of the employment contract by mutual consent, including payment of the statutory transition payment. The employee’s representative eventually sent a draft settlement agreement and had already held the employer liable for damages in the event agreement was not reached. This final demand, dated 16 December 2024, also went unanswered.
The employee subsequently claimed damages equal to the missed transition payment, amounting to just over sixteen thousand euros, plus statutory interest — the so-called “Xella compensation”.
Ruling of the court
It is established that, on 15 December 2023, the employee had been unfit for work for two years or longer and was receiving a WIA benefit. From that point, a dormant employment contract existed. The employee repeatedly requested termination with payment of the transition payment, referring to the UWV’s compensation of this payment to the employer.
The subdistrict court ruled that the employer should have agreed. All requirements for a legitimate Xella request were met. By ignoring the Xella request, the employer acted contrary to the duty of good employeeship. This constitutes an attributable failure in its obligations under the employment contract. The claimed damages of just over sixteen thousand euros were awarded, as they were not disputed.
Statutory interest is payable from 4 July 2024, since default occurred on that date due to non-payment after the set deadline had passed. Regarding compensation for the transition payment, most of it is reimbursed by the UWV, namely the portion corresponding to the transition payment calculated up to the expiry of the regular 104-week wage payment obligation. Since the transition payment continues to accrue after the 104-week term expires, statutory interest is also owed on this additional portion.
Conclusion
This ruling underlines the risk of inaction regarding dormant employment contracts, where costs can quickly add up. It is advisable not to leave an Xella request unanswered for too long. Our employment lawyers regularly advise employers on the right approach to dormant employment contracts. Do you have a similar situation or questions on this topic? Please feel free to contact one of our employment lawyers.
Click here for the full ruling (in Dutch).
