Supreme Court of the Netherlands, 28 November 2025, ECLI:NL:HR:2025:1808
Late last year, the Supreme Court issued an important ruling on the application of the aggregation rule when calculating the transition payment. Central to the case was the question of whether an earlier employment period, which the employee had ended themselves, must be included when calculating the transition payment.
Facts
The employee started working for the employer on 1 June 2011. The employee resigned himself, effective 1 October 2017. On 1 March 2018, he re-joined the employer. A dispute arose between the parties about the employee’s role and a posting abroad. The employer subsequently asked the subdistrict court to dissolve the employment contract due to a disrupted working relationship. The subdistrict court dissolved the employment contract and awarded a transition payment of just over EUR 12,000 gross. On appeal, the Court of Appeal increased the transition payment to just over EUR 14,000 gross, but ruled that the earlier employment period should not be included in the calculation, because the employee himself had ended it.
The employee argued in his appeal to the Supreme Court that, under Section 7:673(4)(b) of the Dutch Civil Code (the aggregation rule), preceding employment contracts that followed one another with intervals of no more than six months must be aggregated.
Ruling of the Supreme Court
The Supreme Court first noted that the transition payment is owed where the employment contract is terminated on the employer’s initiative or as a result of seriously culpable conduct or omission by the employer. The payment is intended to compensate for the consequences of dismissal and to facilitate the transition to other work. Its amount depends on the duration of the terminated employment contract. The aggregation rule provides that preceding employment contracts between the same parties that followed one another with intervals of no more than six months are aggregated for calculation purposes.
According to the Supreme Court, however, it would not be consistent with the purpose of the transition payment to also include earlier employment contracts that the employee ended themselves, without any seriously culpable conduct or omission by the employer. After all, that would mean an employee who leaves voluntarily could, on a later termination, still claim compensation for that earlier period.
The Supreme Court also referred to the legislative history, which notes that the aggregation rule does not apply where an employee, on their own initiative, starts performing the same work for a different employer. A reasonable interpretation of the law therefore means that earlier employment contracts ended on the employee’s own initiative (without seriously culpable conduct or omission by the employer) are not included when applying the aggregation rule.
Conclusion
The Supreme Court confirms that an earlier employment period ended by the employee themselves does not count towards the calculation of the transition payment when a later employment period ends on the employer’s initiative. Only if the earlier termination was connected to seriously culpable conduct or omission by the employer might this be different. That was not the case here.
What does this mean for employers?
For returning employees, the accrual of years of service for the transition payment, in principle, starts afresh where the earlier employment period was ended by the employee themselves and there was no seriously culpable conduct or omission by the employer. If the employee resigned at the time because of seriously culpable conduct or omission by the employer, this may be different.
Do you have questions about, or need help calculating, the transition payment? Please feel free to contact one of our employment lawyers.
Click here for the full ruling (in Dutch).
