Settlement Agreement During Pregnancy: Your Rights as an Employee

Receiving a settlement agreement (VSO) during your pregnancy is a special and sometimes overwhelming situation. During this period you have statutory protection that gives you a strong negotiating position — but there are also serious risks attached to signing without due consideration. Particularly if illness arising from the pregnancy is also involved, it is crucial to seek legal advice before you sign anything.

The prohibition on dismissal during pregnancy

As a pregnant employee, you enjoy additional protection against dismissal. Your employer cannot unilaterally terminate your employment contract: the prohibition on dismissal is laid down in Article 7:670(2) of the Dutch Civil Code and applies from the first day on which the employer is aware of the pregnancy. That protection continues during maternity leave and for six weeks after you have returned to work following the leave.

If you become ill after maternity leave due to pregnancy-related complaints, that six-week period is extended until the moment you actually return to work. You are therefore protected against unilateral dismissal for a considerable period of time.

There are a few exceptions where the prohibition on dismissal does not apply:

• Summary dismissal on grounds of an urgent reason
• Dismissal during the probationary period (provided the pregnancy itself is not the reason)
• Complete cessation of business or bankruptcy
• Cessation of the activities of the part of the business in which you work, provided you have worked there for at least 26 weeks

Important: the prohibition on dismissal does not mean that the employer cannot take any action at all. Dissolution can be requested through the subdistrict court, but even then your situation carries significant weight in the assessment.

Settlement agreements and pregnancy – what you need to know

Although your employer may not unilaterally dismiss you, they are permitted to offer you a settlement agreement. A settlement agreement is, after all, a termination by mutual consent: you sign voluntarily, which means that the statutory prohibition on dismissal does not formally stand in the way. Nevertheless, this does not mean that you should simply sign.

Your pregnancy actually gives you a strong negotiating position. Your employer is aware that a formal dismissal route via UWV or the subdistrict court is difficult while the prohibition on dismissal applies, which means they have an interest in reaching an agreement with you. This creates room to negotiate better terms, such as a higher severance payment than the statutory transition payment, payment of any outstanding holiday days, or the waiving of a non-compete clause.

You are never obliged to sign a settlement agreement. If you do not wish to cooperate, you are entirely free to decline.

Settlement agreement during illness caused by pregnancy — additional risk

This is where the greatest risk lies. If you are off sick as a result of your pregnancy, it is in almost all cases inadvisable to sign a settlement agreement. UWV regards cooperating with dismissal during a period of illness as what is known as a detrimental act: you are relinquishing your right to continued payment of salary, and in doing so you are also acting to the detriment of UWV.

The consequences are far-reaching:

• You are not entitled to unemployment benefit (WW), because at the time your employment ends you are not available for the labour market
• An application for a Sickness Benefit (Ziektewet) will in all likelihood be refused by UWV on the grounds of the detrimental act
• Even if you hope to recover quickly, UWV will look at your actual availability for work at the moment your employment ends

Even if you are not yet officially signed off sick but are experiencing symptoms that could potentially lead to incapacity for work, we strongly advise having your situation properly assessed. If there is any doubt about your health and you have received a proposal for a settlement agreement, professional advice is not a luxury – it is a necessity.

The WAZO benefit and what is at stake

As an employee, you are entitled during your maternity and parental leave to a benefit under the Work and Care Act (Wet arbeid en zorg – WAZO). That benefit amounts to 100% of your daily wage, up to a statutory maximum. The leave lasts a minimum of sixteen consecutive weeks, of which at least ten weeks must fall after the birth. Longer periods apply in the case of multiple births.

If you sign a settlement agreement before your leave has ended or while you are still entitled to this benefit, you risk losing those entitlements in whole or in part. This represents a direct financial loss on top of losing your job. If your fixed-term contract expires during your leave, the employment contract ends by operation of law; however, in that case you will generally retain your entitlement to the WAZO benefit for the remaining leave period via UWV.

Practical tips if you receive a settlement agreement during your pregnancy

• Teken nooit direct. After signing you have a statutory fourteen-day cooling-off period in which you may withdraw your agreement; if your employer fails to notify you of this in writing, a period of twenty-one days applies.
• Always have the settlement agreement reviewed by an employment law specialist before responding to your employer.
• Check whether you are ill or experiencing symptoms that are related to your pregnancy. If so, wait until you have received advice before making any decision.
• Check that the settlement agreement is unemployment benefit (WW)-proof: the initiative must lie with the employer, there must be no urgent reason for dismissal, and the dismissal must not be attributable to you.
• Ensure neutral wording is used in the settlement agreement. Accusatory or blameworthy language can harm your entitlement to benefits.
• Negotiate the compensation. The statutory transition payment is a minimum; particularly as a pregnant employee, you have grounds to request more.
• Check the notice period. A notional notice period that is too short can result in your unemployment benefit (WW) starting later or even being refused.
• Have non-competition and non-solicitation clauses removed or restricted, especially now that you need to find new employment.

Fixed-term contract or probationary period and pregnancy

If you have a fixed-term contract, it may simply expire on the agreed date, even if you are pregnant. Your employer is only prohibited from deciding not to renew your contract because of the pregnancy. If you can demonstrate that the pregnancy was the reason for the non-renewal, you can challenge this; it is regarded as improper discrimination on the grounds of sex. The same applies to a dismissal during a probationary period: the pregnancy may never be the reason.

Why Employment Lawyer Eindhoven

Receiving a VSO during your pregnancy is one of the most sensitive situations in employment law. The combination of dismissal protection, benefit risks and financial interests calls for someone who knows exactly where the pitfalls lie. At Arbeidsjurist Eindhoven we help pregnant employees in the Eindhoven and Brabant region with assessing, negotiating and, where necessary, challenging a settlement agreementWe look not only at the text of the agreement, but also at your broader situation: your health, your benefit entitlements, and your future.

Have you received a settlement agreement or do you expect to receive one? Contact us without obligation. We are happy to think things through with you, with no strings attached.

Frequently asked questions

Is my employer allowed to offer me a settlement agreement while I am pregnant?

Yes, they are. A settlement agreement is a termination by mutual consent and therefore falls outside the statutory prohibition on dismissal. Your employer may therefore make you a proposal, but you are never obliged to agree to it. Because the prohibition on dismissal during pregnancy does apply to unilateral dismissal, you are in a strong negotiating position.

Will I lose my unemployment benefit (WW) if I sign a settlement agreement during my pregnancy?

Not necessarily, but there are strict conditions. The settlement agreement must be WW-compliant: the initiative must lie with the employer, there must be no urgent reason for dismissal, the notional notice period must have been applied correctly, and the wording must be neutral. If you are unwell due to the pregnancy, there is a considerable risk that the UWV will refuse both your unemployment benefit (WW) and your sickness benefit (Ziektewet) on the grounds of a so-called disadvantaging act. Always have the agreement reviewed by a legal professional.

What is the prohibition on dismissal during pregnancy and how long does it last?

The prohibition on dismissal is laid down in Article 7:670(2) of the Dutch Civil Code and prohibits your employer from unilaterally terminating your employment contract. It applies from the first day on which the employer is aware of the pregnancy, continues throughout maternity leave, and for a further six weeks after you return to work. In the event of pregnancy-related illness after the leave, that period is extended until you have actually returned to work.

What is at stake if I am unwell due to my pregnancy and sign a settlement agreement anyway?

In that case you risk having no safety net at all: you are not entitled to unemployment benefit (WW) (because you are unable to apply for jobs) and a sickness benefit (Ziektewet) will in all likelihood be refused by the UWV, because cooperating with a dismissal whilst sick is regarded as a disadvantaging act. You are, after all, relinquishing your right to continued payment of your salary. Always seek legal advice first if you are unwell or have complaints related to the pregnancy.

How strong is my negotiating position as a pregnant employee in the context of a settlement agreement?

Relatively strong. Because the prohibition on dismissal is in force, your employer is aware that a formal dismissal route via the UWV or the subdistrict court is difficult and uncertain. This gives you room to ask for more than just the statutory transition payment, to have holiday days paid out, to have a non-compete clause removed, or to negotiate a higher payment. Have an employment lawyer assist you in order to get the most out of the negotiations.

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.