A resolutive condition in an employment contract is a clause under which the contract ends automatically when a defined future event occurs, without notice, without a dismissal permit and without an application to the court. Because it bypasses the dismissal system entirely, Dutch case law allows it only within narrow limits.
When is a resolutive condition valid?
Three requirements have emerged from the case law. The event must be objectively determinable, so that its occurrence does not depend on the will or the judgment of the employer. The condition must not be incompatible with the closed system of dismissal law – a clause that in substance gives the employer a free hand to end the contract will not be upheld. And the employer must not itself have brought about, or been able to prevent, the event.
Conditions that have been accepted tend to involve an external requirement the employee must satisfy: the loss of a licence, permit or certification that the law requires for the work, or the failure to obtain a qualification that the role demands. Conditions expressed in terms of performance, cooperation or the relationship between the parties almost never survive, because they turn on the employer’s own assessment.
When exactly does the contract end?
The contract ends by operation of law at the moment the condition is fulfilled. There is no notice period and no aanzegging, and in principle no transition payment is due, since there is no termination at the employer’s initiative in the ordinary sense.
That is precisely why disputes arise, and why they are worth taking seriously on both sides: if the condition turns out to be invalid, the contract never ended. The employee is then still employed, with a claim for wages over the whole intervening period, and the employer is confronted with a liability that has been accumulating quietly for months.
Practical guidance
For employers, the test is whether an outsider could establish from objective facts that the condition has been fulfilled, without any input from the employer. Draft the clause around a concrete, externally verifiable event, state what happens if the event occurs, and take advice before relying on it rather than after. Where there is real doubt, the safer route is the ordinary one: a settlement agreement or an application to the court.
For employees, a resolutive condition is not the last word. If you are told the contract has ended automatically, the question is whether the clause meets the requirements and whether the event genuinely occurred outside the employer’s influence. Raise it quickly: entitlements and limitation periods in employment matters are short.
Frequently asked questions
Can a resolutive condition be agreed in a fixed-term contract?
Yes, in both fixed-term and open-ended contracts, subject to the same requirements. In a fixed-term contract it operates alongside, not instead of, the agreed end date.
Is a transition payment due?
Where the condition is valid the contract ends by operation of law and no transition payment arises. Where it is not valid, the contract has not ended at all, and the position is entirely different.
Can the employer decide whether the condition has occurred?
No. A condition whose fulfilment depends on the employer’s own judgment is for that reason invalid.
Advice on resolutive conditions
These clauses are easy to write and hard to rely on. We assess whether a condition is enforceable, draft clauses that stand a realistic chance of being upheld, and act for employees confronted with an automatic ending they did not expect. Please contact Law & More; our employment lawyers are happy to help.
