In 2025 as well, courts have regularly ruled on issues relating to employee participation. In this blog, we discuss the most notable judgments on the basis of five (recurring) current themes.
In practice, we observe that an increasing number of organisations are taking a critical look at their employee participation structure and asking whether that structure still aligns with the decision-making authority of the organisation or within the group. The aim is to organise employee participation in such a way that it promotes the proper application of the Works Councils Act (WOR). An important principle in this respect is that employee participation should follow decision-making authority. There appears to be a cautious trend towards the establishment of a joint works council (GEMOR), a development that is linked to the increasing centralisation of decision-making authority.
Whether this is in the interest of a proper application of the WOR was a question addressed by the Amsterdam Court of Appeal last year in the Albert Heijn e-Commerce case. At Albert Heijn, employee participation was integrated into a GEMOR in order to align with the amended decision-making structure of Albert Heijn. On appeal, the Amsterdam Court of Appeal ruled that Albert Heijn could reasonably arrive at this decision. The judges emphasised that the entities involved pursue a single financial, strategic and social policy, and that a GEMOR in which a subcommittee safeguards the specific interests of e-Commerce contributes to better communication, more efficient consultation and higher-quality employee participation.
Read the full judgment here: (ECLI:NL:GHAMS:2025:1370)
In several judgments in 2025 as well, it has been confirmed that ensuring a careful employee participation process is primarily the responsibility of the entrepreneur. On the basis of three rulings, we briefly explain this below.
A reasonable period for advice is required
The works council of eScience had to advise on a reorganisation with major personnel consequences, for which an advisory period of six weeks had been set. Due to liquidity problems, management pressed for swift advice, but the works council was unable to respond in time because of discussions about the scope of the request for advice, imposed confidentiality obligations, and missing financial information and a social plan. As clear agreements on the advisory process were lacking, management took its final decision and communicated it to employees without waiting for the draft advice announced by the works council.
The Enterprise Chamber of the Amsterdam Court of Appeal (hereinafter: the EC) ruled that the entrepreneur is primarily responsible for ensuring a careful employee participation process and that it is for the works council to determine which information is required. When assessing whether an advisory period is reasonable, all circumstances must be taken into account. In this case, the entrepreneur should have made clear agreements about the further course of the process once it became apparent that the works council would not be able to issue its advice in time. The works council’s appeal was upheld.
Read the full judgment here: (ECLI:NL:GHAMS:2025:1794)
A careful substantiation of the decision is necessary
The works council of the Royal Netherlands Academy of Arts and Sciences (KNAW) was required to advise on a proposed decision to gradually phase out the use of monkeys as test animals for non-essential scientific research, with a complete cessation as of October 2023. The works council issued a negative advice, but the board adopted the decision without properly substantiating it. The Enterprise Chamber emphasised that it applies a marginal review when assessing whether the entrepreneur could reasonably have arrived at the decision. However, this does not relieve the entrepreneur of the obligation, when deviating from the works council’s advice, to explicitly address the arguments put forward by the works council and to clearly explain how the various interests were weighed. Because KNAW had failed to do so, the decision had to be withdrawn.
Read the full judgment here: (ECLI:NL:GHAMS:2024:3423)
Adequate provision of information and a careful weighing of interests are required
In the context of a group-wide “Business Optimization Plan,” Micro Focus, part of the OpenText group, was required to eliminate 12 positions. In this ruling, in line with earlier case law, the Enterprise Chamber pointed out that an entrepreneur — even in the case of decisions arising from an international group strategy — must carry out an independent weighing of interests and make this transparent to the works council. As this had not been done, and the works council had otherwise received insufficient information about the impact of the decision on the Dutch entity, the Enterprise Chamber considered the decision to be manifestly unreasonable and ordered its withdrawal and the reversal of its consequences.
Read the full judgment here: (ECLI:NL:GHAMS:2025:1299)
Employers are increasingly steering towards greater presence at the office, but recent case law makes clear that this cannot be done lightly: changes to working-from-home or hybrid working arrangements often affect working conditions and therefore usually require the consent of the works council. This follows, among other things, from two rulings in which the amendment of a working-from-home or hybrid working arrangement without the consent of the works council was central. In both cases, the court held that a decision that restricts or abolishes working from home is subject to the right of consent within the meaning of Article 27(1)(d) of the Works Councils Act (WOR), because it materially changes employees’ working conditions. The two courts adopted different approaches.
In the Asus case, the subdistrict court opted for a factual approach by examining the concrete differences between working at the office and working from home, such as commuting time, flexibility, workplace set-up and work–life balance. On that basis, the court concluded that a scheme relating to (hybrid) working from home is also a scheme in the field of working conditions.
In the Caterpillar case, the court focused primarily on the purpose and scope of the arrangement. The court held that the purpose and scope of the decision concerned the abolition of the working-from-home policy, requiring employees to work at the office every working day. As a result, working conditions changed and this affected employees’ well-being (workload, commuting time, work–life balance, psychosocial strain). The consent of the works council was therefore required.
Read the full Asus judgment here: (ECLI:NL:RBAMS:2025:3782)
Read the full Caterpillar judgment here: (ECLI:NL:RBOBR:2025:5758)
In 2025 as well, litigation took place about the amendment of a remuneration system within the meaning of Article 27(1)(c) of the Works Councils Act (WOR) and the role of the works council in that context. The key question is whether there is a remuneration system within the meaning of the WOR, or whether that system is amended by the decision in question. This usually results in highly fact-specific rulings; we summarise a number of them below.
A decision to amend the existing share scheme by the US holding company does not constitute a change to the internal ranking of remuneration within the undertaking.
The Hague Court of Appeal ruled on appeal that the amendment of the existing share scheme by the US holding company of PPD Netherlands B.V. did not concern an amendment of a remuneration system and that, therefore, no right of consent applied for the works council. This was because both the old and the new scheme pursued the same objective, namely long-term remuneration for employees at salary scale 8 and above. Nor was the purpose of the new scheme to introduce a change in the ranking of positions in relation to remuneration.Both schemes applied to the same group of employees, but within that group only the best-performing employees are rewarded. The fact that the budget for awarding the remuneration changed as a result of the decision (no longer a fixed percentage of the individual employee’s salary, but a budget made available by Thermo Fisher) likewise did not lead to a change in the internal ranking of remuneration. In addition, the level of remuneration itself does not fall within the scope of a remuneration system.
Read the full judgment here: (ECLI:NL:GHDHA:2025:1894)
Amendment of the Performance Shares scheme by the French parent company constitutes an amendment of an employment conditions scheme and therefore requires consent
Under the local schemes “Saving Plan” and “Valoptec,” employees of Essilor Group The Netherlands B.V. in certain salary scales can choose to use part of their salary to purchase shares in EssilorLuxottica. In addition, the scheme “Performance Shares,” applied within the French parent company, meant in practice that Essilor employees who had purchased shares under the Valoptec scheme were annually granted Performance Shares by EssilorLuxottica. The Arnhem subdistrict court had to rule on the question whether the decision of Essilor’s France-based parent company to terminate its share scheme (the matching of Performance Shares) was subject to the works council’s right of consent and whether that decision was void after the works council had invoked nullity.
The subdistrict court held that the scheme relating to the Performance Shares qualifies as an employment conditions scheme, because the explanation of the Valoptec scheme shows that employees who purchase shares under that scheme are entitled to Performance Shares. According to the court, the fact that the allocation is formally made by the parent company and that employees must accept the terms and conditions does not alter this. Since the scheme qualifies as an employment conditions scheme, the abolition of the Performance Shares falls under the right of consent pursuant to Article 27 of the Works Councils Act (WOR). The fact that the decision to abolish the Performance Shares was taken by Essilor’s parent company does not change this. The decision could be attributed to Essilor. According to the subdistrict court, a different judgment would, in effect, lead to an undermining of Dutch employee participation law.
Read the full judgment here: (ECLI:NL:RBGEL:2025:6639)
The decision not to grant an individual pay increase based on individual performance in addition to the collective wage increase under the collective labour agreement does not constitute an amendment of a remuneration system
On the basis of the generally binding Collective Labour Agreement for Electronic Retail, Apple Retail Netherlands B.V. was subject to a collective wage increase of 5% for the year 2023. In addition, the “Total Compensation Planning” (TCP) applied, under which managers allocated to individual employees the budget made available annually per country by Apple Inc. In September of that year, Apple Retail Netherlands B.V. decided to grant employees only the wage increase in accordance with the collective labour agreement and not to grant an individual pay increase based on individual performance. At first instance, the subdistrict court ruled that although the TCP qualified as a remuneration system within the meaning of the Works Councils Act (WOR), the manner in which the available budget was distributed did not constitute an amendment of that same remuneration system. On appeal, however, the Amsterdam Court of Appeal ruled that there was no remuneration system within the meaning of the WOR, since the entitlement to a pay increase concerned a primary employment condition, namely the level of remuneration. The fact that no entitlement to individual remuneration could be claimed once the budget had been exhausted applied to all employees and therefore did not result in a change to the internal ranking of remuneration between different groups of employees. Consequently, this concerned “the level of remuneration” rather than “the classification into remuneration groups.”
Read the full judgment here: (ECLI:NL:GHAMS:2025:2924)
A scheme regarding payment of on-call duty allowances on a realisation basis is subject to the right of consent
At the end of 2025, Stichting Waternet asked its works council to advise on a proposed decision concerning an amendment of the on-call duty scheme. One of the proposed changes concerned payment of on-call duties on a realisation basis, i.e. payment only after the on-call duty had actually been performed. In addition, the classification into light and heavy on-call duties was abolished. The subdistrict court ruled that this constituted a consent-requiring amendment of the remuneration system within the meaning of Article 27(1)(c) of the Works Councils Act (WOR), as it appeared from the intended amendment that employees would no longer be guaranteed continued payment in the event of illness or leave.
The subdistrict court also did not grant substitute consent, as the works council’s refusal to give consent was not unreasonable and Waternet had failed to demonstrate the existence of compelling business-economic, organisational or social reasons. For example, a fixed on-call duty allowance had been used for twenty years for a structural and predictable schedule. Waternet had insufficiently substantiated why a fixed allowance would no longer be permissible; the collective labour agreement did not preclude this. Payment on a realisation basis was moreover disadvantageous for employees (particularly in cases of illness and leave), and the new system was prone to disruptions and difficult to monitor.
Read the full judgment here: (ECLI:NL:RBAMS:2025:6500)
The right of inquiry is regulated in Articles 2:349 et seq. of the Dutch Civil Code and, briefly put, entails that shareholders and trade unions have the authority to initiate proceedings before the Enterprise Chamber to request an investigation into the policy and course of affairs within an undertaking if there are reasons to doubt their correctness. A works council does not have an independent right of inquiry. However, this right may be granted to the works council on a contractual basis beyond the statutory framework, or the works council may join the proceedings as an interested party. This occurred on several occasions in 2025.
Works Council of Nexperia B.V. as interested party
In the high-profile case concerning chip manufacturer Nexperia, the works council of Nexperia B.V. expressed its support in the inquiry proceedings initiated by other parties. In doing so, the works council pointed, among other things, to a breach of its right to be consulted in relation to the announced dismissal of the director. On 7 October 2025, the Enterprise Chamber ruled in a summary decision that there were well-founded reasons to doubt the soundness of the policy and course of affairs at Nexperia and granted the requests of Nexperia Holding B.V. and Nexperia B.V. to order certain immediate measures. In its decision of 13 October 2025, the Enterprise Chamber subsequently addressed the matter in more detail.
Of particular interest from an employee participation perspective is that the Enterprise Chamber emphasised that, at all stages of inquiry proceedings, a balancing of interests takes place, involving an integrated assessment of the various interests of the legal entity and the different interested parties, and that due regard is also given to what the works council has put forward. This confirms that the works council can indeed play an important role in such proceedings.
Read the full judgment here: (ECLI:NL:GHAMS:2025:2752)
Central Works Council of Strukton Groep N.V. as interested party
By decision of 1 June 2023, the Enterprise Chamber ordered an investigation into the policy and course of affairs of Oranjewoud and Strukton. Subsequently, by petition of 20 February 2025, the petitioners requested the Enterprise Chamber to (i) determine that mismanagement had occurred during the investigation period, (ii) establish that [DGA], as director, was responsible for this mismanagement, and (iii) order a number of measures. In this matter, the Central Works Council (COR) of Strukton Groep N.V. joined the proceedings as an interested party. In doing so, the COR was not only able to express its support for the requests of the petitioning parties and endorse the grounds put forward for those requests, but also to add that there were grounds for mismanagement based on employee participation law, as directors had repeatedly been dismissed without the COR’s advice being sought in a timely manner.
Read the full judgment here: (ECLI:NL:GHAMS:2025:3301)
Works Council of FNV as interested party
In June 2025, the Enterprise Chamber ordered an investigation into the policy and course of affairs of FNV and, by way of an interim measure, appointed Enterprise Chamber officials as members of FNV’s supervisory board with a joint decisive vote. On 1 October 2025, these officials published a proposal for amended governance of FNV. The works council indicated that it supported the proposals and requested that the articles of association include a right for the works council to nominate one of the members of the supervisory board. On 10 November 2025, the Enterprise Chamber officials requested authorisation from the Enterprise Chamber to amend FNV’s articles of association. The works council joined these proceedings as an interested party and supported the officials’ request. The Enterprise Chamber ruled that the proposed amendment of FNV’s articles of association in accordance with the draft articles resolved the existing governance bottlenecks. In doing so, it took into account that the draft articles had been drawn up after repeated consultations with all parties involved, including the works council, that all relevant interests had been considered, and that adjustments had been made where necessary in response to comments, wishes and suggestions from those involved, including the works council. Here too, the works council was able to contribute to a careful inquiry process.
Read the full judgment here: (ECLI:NL:GHAMS:2025:3620)
With these themes and the related judgments, 2025 has come to a close. What will 2026 bring? We will keep you informed!
Do you have questions about employee participation, or would you like to know what these rulings mean for employee participation within your organisation? Our team is ready to advise you.
Renate Vink-Dijkstra, Lawyer & Partner Employment Law & Employee Participation and Barbara van Dam-Keuken, Legal Assistant Employment Law & Employee Participation.
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