Mirror Principle Applied Incorrectly Here Are Your Steps

If you are being dismissed in a reorganisation and you feel that your employer has not followed the rules correctly, there is a real possibility that the mirror principle has been applied incorrectly. This is no minor detail: it is a statutory method that determines who is put forward for dismissal first. Knowing your rights means you can act in good time.

What the mirror principle entails and why it matters

The mirror principle is the statutory method used in cases of dismissal on business-economic grounds to determine which employee must be put forward first. The principle is straightforward: the age distribution within a group of interchangeable roles must, as far as possible, remain the same after the reorganisation as it was before. Your employer is therefore not free to choose who leaves.

To do this, the employer divides all employees within a category of interchangeable roles into five age groups: 15 to 25 years, 25 to 35 years, 35 to 45 years, 45 to 55 years, and 55 years and older. Within each age group, the principle of last in, first out then applies: the employee with the shortest length of service is the first to be put forward for dismissal.

It is important to know that interchangeability concerns the roles themselves, not the individuals who perform them. The level of education or the performance of an individual employee is not in itself a reason to select someone else.

Common errors in its application

In practice, things regularly go wrong. Employers sometimes make choices — whether deliberately or not — that influence the outcome of the proportional selection. If you recognise any of the following situations, further investigation is certainly worthwhile:

• Incorrect job classification: the employer defines the boundaries of a job group too broadly or too narrowly, causing you to end up in a different category than you should.
• Incorrect assessment of interchangeability: roles that are comparable in terms of content, knowledge, and remuneration are wrongly classified as non-interchangeable.
• Incorrect age group classification: an employee is placed in the wrong age category, causing the order of dismissal to shift.
• Foute peildatum: the employer uses an incorrect date to calculate lengths of service and ages.
• External workers overlooked: agency workers, self-employed contractors, and other hired-in staff must be released first, before permanent employees are considered. If that order is reversed, the entire proportional selection is flawed.
• Unjustified reliance on indispensability: an employer may disregard at most 10% of the employees being considered for dismissal on the grounds of special skills, but this is subject to strict conditions.

Your options if the mirroring has not been applied correctly

Do you suspect that the proportional selection principle was applied incorrectly in your dismissal? If so, you have two opportunities to take action: during the UWV procedure and afterwards.

Step 1: submitting a defence to the UWV

As soon as your employer applies to the UWV for a dismissal permit, you will be given the opportunity to submit a defence. You will be sent a form for this purpose and will have a period of fourteen days. Use that opportunity. In your defence, set out clearly and concretely why the proportional selection is incorrect: which roles have wrongly been left out of consideration, which colleague should actually have been put forward for dismissal earlier, or why your age-group classification is incorrect. A well-substantiated defence can result in the UWV refusing the dismissal permit.

Step 2: going to the subdistrict court after a permit has been granted

Has the dismissal permit been granted nonetheless and have you since been dismissed? That is not the end of the matter. Within two months of your last working day you can submit an application to the subdistrict court. You then request reinstatement of your employment contract or, if that is no longer realistic, an equitable compensation on top of the transition payment. Judges have ruled in several cases that an incorrectly applied proportional selection principle constitutes an insufficiently reasonable ground for dismissal, with far-reaching financial consequences for the employer.

Step 3: negotiating the settlement agreement

Has your employer offered you a settlement agreement instead of going through the UWV route? In that case, a demonstrable error in the proportional selection gives you extra room to negotiate. Your legal position is stronger and you can negotiate a higher payment or better departure terms. Never sign a settlement agreement without first having checked the proportional selection calculation.

Practical tips to strengthen your position

• Always ask for the complete personnel list — including names, ages, lengths of service, and job titles — that your employer submitted to the UWV.
• Compare your role with those of your colleagues: are there employees with shorter lengths of service or in the same age group who were not put forward?
• Check whether there are external workers or temporary contracts that should have been ended before your turn came.
• Pay attention to the reference date your employer uses for calculating age and length of service.
• Make a note of everything and keep all correspondence: emails, letters, and verbal communications can serve as evidence.
• Seek legal advice in good time, and certainly before the deadline for submitting a defence or lodging an appeal expires.

When deviation from the mirror principle is permitted

The proportional selection principle is not absolute. There are situations in which your employer may lawfully deviate from it, but the bar is high. Consider the so-called hardship clause for seconded employees, or the indispensability criterion where an employee can demonstrably be shown to possess unique and irreplaceable knowledge. In addition, a collective labour agreement (cao) may establish its own dismissal committee that assesses cases instead of the UWV. In all such cases the rule is: the deviation must be substantiated on its merits and assessed by a competent body. A 'creative' job classification that is designed solely to protect or dismiss a particular employee is not a valid deviation.

Would you like to know more about the broader context of dismissal in a reorganisation? If so, please also read our overview article on Reorganisation and Redundancy in Eindhoven.

Assistance when the mirror principle has been applied incorrectly

At Arbeidsjurist Eindhoven we are familiar with the local labour market and the reorganisation cases arising in the Brainport region. Together with you, we examine whether the proportional selection principle has been applied correctly, assist you in drafting a defence to the UWV, or guide you through proceedings before the subdistrict court. Feel free to contact us without obligation: we are happy to think through your situation with you, without any commitment on your part.

Frequently asked questions

How do I know whether the mirror principle (afspiegelingsbeginsel) has been incorrectly applied in my dismissal?

Ask your employer for the personnel list including ages, lengths of service, and job titles that was submitted to the UWV. Then check whether you have been correctly placed in the right age group, whether colleagues with a shorter length of service in the same group were not put forward for dismissal, and whether external workers were released before permanent employees were considered. If you are in any doubt, it is advisable to consult an employment lawyer.

What can I do if the UWV has already granted a dismissal permit even though the mirror principle was not applied correctly?

You can submit an application to the subdistrict court within two months of your last working day on the basis of Article 7:682 of the Dutch Civil Code. You can then request reinstatement of your employment contract or, if that is no longer possible, an equitable compensation in addition to the transition payment. Please note: this deadline is strict and begins to run on your last working day, not on the date of notice.

May my employer deviate from the mirror principle if I am indispensable to the company?

In principle yes, but the threshold is high. The employer must be able to demonstrate that you possess such exceptional knowledge or skills that your dismissal would seriously harm the organisation. Furthermore, a maximum of 10% of the employees eligible for dismissal may be excluded on these grounds, and strict conditions apply. A simple preference for a colleague is not a valid reason to deviate from the mirror principle.

Can I also take action if my employer has offered me a settlement agreement?

Absolutely. If the mirror principle has demonstrably been applied incorrectly, your legal position is stronger and you have additional room to negotiate. You can seek a higher payment or better terms. Never sign a settlement agreement without first having checked the mirror-principle calculation, because upon signing you generally relinquish all further claims.

Which roles are taken into account when calculating the mirror principle?

The roles in question are so-called interchangeable positions: positions that are comparable in terms of content, required knowledge and skills, competencies, level, and remuneration. The assessment is objective and concerns the positions themselves, not the individual employees who hold them. External workers such as agency staff and self-employed contractors are also included in the personnel overview, but they must be the first to be released before permanent employees are considered.

We are happy to think along with you. For advice tailored to your situation, we would be glad to talk. No rights can be derived from the content of this page and it may contain inaccuracies.