The term fictitious notice period in a settlement agreement means that, in the case of termination by mutual consent, the Dutch public employment service (UWV) acts as if the statutory or contractual notice period has been fully observed, even though the contract ends earlier. This fictitious period is crucial for your entitlement to unemployment benefits (WW) and for the starting date of the benefit. Combined with outplacement, it determines whether you can bridge the gap financially while working towards a new job. In this article you will read how this rule works exactly, which risks there are and how to align the arrangements in the settlement agreement with your career move.
What exactly is a fictitious notice period?
The fictitious notice period is a concept from the unemployment-benefit rules of UWV (Uitvoeringsinstituut Werknemersverzekeringen, the Dutch employee-insurance agency). In the case of dismissal through a settlement agreement, UWV assumes the notice period your employer would have had to observe if they had given regular notice. That is the fictitious notice period: an imaginary period during which you would in fact still have been employed.
With a settlement agreement (vaststellingsovereenkomst, often called VSO) the employment is ended by mutual agreement, without the involvement of a subdistrict court or UWV. Under Dutch labour law, an employer must respect the statutory or contractual notice period when giving notice. UWV also applies this period in the case of termination by mutual consent, but then as a fictitious notice period. This means that your unemployment benefit can only start once that fictitious period has ended.
For employees entering an outplacement programme, the fictitious notice period therefore partly determines the financial room available. Anyone who does not arrange this properly in the VSO can unintentionally end up with a period without salary and without WW benefits. That is why it is essential to have a clear picture of the notice period and the termination date when discussing outplacement.
- The fictitious notice period is based on the employer’s notice period.
- UWV looks at the law, the collective labour agreement (cao) and the employment contract.
- The unemployment benefit only starts after the fictitious notice period has ended.
- A termination date that is too early can lead to an income gap.
- Outplacement arrangements must fit this period.
How does UWV determine the fictitious notice period?
For the fictitious notice period, UWV uses the rules from the Dutch Civil Code and any collective labour agreement (cao) arrangements. The starting point is the notice period that applies to the employer. That is important: not the employee’s notice period, but the employer’s, is decisive for the fictitious notice period.
Under the law, the employer’s notice period is linked to the length of service, unless something else has been agreed in the cao or contract within the statutory limits. For a permanent contract this can be, for example, one month for a short period of service, rising to a maximum of four months for a long period of service. For a fixed-term contract the notice period may be different, as is also explained in information about the notice period for a fixed-term contract.
UWV counts the fictitious notice period from the date on which the VSO is concluded (the moment of notice) and, unless the cao or contract provides otherwise, lets that period end against the end of the month. The question is therefore whether the period between signing the VSO and the agreed termination date fully covers that notice period. If it does not, the remaining part forms the fictitious notice period. For that period UWV in principle expects salary or an equivalent compensation. If you receive nothing, your WW benefit will still only start after that fictitious period, which affects the exact starting date of your benefit.
- UWV first looks at the statutory notice periods.
- It then takes cao or contract arrangements into account.
- The employer’s period is decisive, not the employee’s.
- The fictitious period runs until the date on which regular dismissal would have been possible.
- The WW benefit can only follow after this fictitious period.
The relationship between the fictitious notice period and the settlement agreement
In a settlement agreement, you and your employer set down in writing the arrangements about the end of the employment. Think of the termination date, the transition payment (transitievergoeding), release from work and any outplacement support. The fictitious notice period plays a quiet but decisive role here, especially for your WW rights.
Under UWV’s rules, a VSO must be set up in such a way that you do not cause culpable unemployment and that you retain your WW rights. This is explained in more detail in information about the settlement agreement and retaining WW rights. One of the key points is that the termination date respects at least the fictitious notice period, or that there is a financial bridge covering that period.
If the employment contract ends earlier than the fictitious notice period would allow, UWV expects your employer to effectively compensate the salary over that period. That can be done through continued payment of salary, an additional payment or a combination. If this is not arranged, you may only receive WW benefits later and temporarily have no income.
- The VSO must align with the fictitious notice period.
- The termination date may not ignore the employer’s period without compensation.
- Financial arrangements in the VSO must cover the fictitious period.
- Incorrect arrangements can lead to a delay or refusal of WW benefits.
- Outplacement costs can be part of the total package.
Examples: how does the fictitious notice period work in practice?
A concrete example makes clear what the fictitious notice period in a settlement agreement means in daily life. Suppose you have been employed for eight years on a permanent contract. Under the law, the employer’s notice period is two months. Your employer wants to end the employment by mutual consent and proposes a VSO with a termination date one month from now.
In that case UWV says: if the employer had given regular notice, they would have had to respect a two-month notice period. The fictitious notice period is therefore two months. Because the agreement already ends after one month, there is still one month of fictitious notice period left. If you receive no salary or equivalent compensation during that month, your WW benefit will only start a month later.
A second example: you have a fixed-term contract that ends in three months. Your employer wants to part ways now through a VSO, including an outplacement budget. In that case the fictitious notice period runs until the end date of the original contract. If the agreed termination date is equal to that end date, no fictitious period arises and the WW benefit can start directly after the contract ends, provided the other conditions are met.
- A long period of service often means a longer fictitious notice period.
- A VSO end date that is too early can create an income gap.
- With fixed-term contracts, the fictitious period often coincides with the end date.
- A higher payment can compensate for the fictitious period.
- An outplacement budget can exist alongside salary or compensation arrangements.
Fictitious notice period, WW and UWV: what should you watch out for?
When you apply for WW benefits, UWV assesses whether you are entitled to a benefit and from which date. In doing so, it looks carefully at the arrangements in the VSO, the fictitious notice period and any payments. The intention is that the WW benefit only starts once your employer is no longer financially responsible for the notice period.
Under the Dutch WW rules, there may be no culpable unemployment. This means, among other things, that you do not stop working voluntarily and without good reason earlier than strictly necessary. A settlement agreement must therefore align with the reasonable notice period. This prevents UWV from finding that you caused an income gap yourself.
For many employees this is a complicated legal and financial issue. Yet it has a direct influence on the room you have to search calmly for new work, possibly supported by an outplacement programme. A wrong assessment can mean that you are without a benefit precisely in the first months after dismissal, while most costs simply continue during that time.
- UWV tests the VSO against the WW conditions.
- The WW benefit only starts after the fictitious notice period has ended.
- A termination date that is too early without compensation can work out badly.
- Culpable unemployment can lead to refusal or reduction of WW benefits.
- Legal advice and career coaching can complement each other well here.
The role of outplacement in a VSO with a fictitious notice period
Outplacement is professional guidance towards new work after (threatened) dismissal. A specialised provider such as Care4Careers helps with processing the dismissal, mapping out qualities and wishes, drawing up a strong CV and searching in a targeted way for suitable vacancies. Information about what outplacement exactly involves shows how broad that support can be.
In a settlement agreement, outplacement can be agreed explicitly and included as a separate item. Employers regularly choose to make a budget available for an outplacement programme in addition to a transition payment. This gives you as an employee more certainty that you are supported not only financially, but also substantively, towards a new job.
The fictitious notice period plays a role here as well. If the employment formally continues during (part of) the outplacement programme, that period can be used to work on your next step in peace. If the VSO ends earlier and outplacement only starts when you no longer receive salary, then it is all the more important that the WW benefit follows on without delay and that the fictitious notice period is processed correctly.
- Outplacement can be included in the VSO as a separate provision.
- An outplacement programme can start during the notice period.
- A well-tuned VSO prevents tension between income and guidance.
- Employers often combine a transition payment with an outplacement budget.
- Care4Careers designs programmes based on your situation and pace.
The fictitious notice period and building a balanced exit package
When shaping a settlement agreement, it is rarely only about the end date. A balanced package takes into account the fictitious notice period, the transition payment, any additional severance, continued payment of salary during release from work and the funding of outplacement. These elements interlock and together determine how well you can make the transition to new work.
Many employers want to guide employees who have been declared redundant or who lose their position through reorganisation in a careful way. In that context, outplacement via Care4Careers or another specialised provider is often chosen. The costs of outplacement are then usually paid directly by the employer and are separate from the transition payment, so that the full amount of that payment remains available as a financial buffer.
For employees, it is wise to look at how the fictitious notice period works through in the exit package during the negotiations. Sometimes a slightly later termination date, combined with release from work and outplacement guidance, can be more favourable than a quick termination with only a higher payment. In other cases a higher payment is precisely what is needed to bridge the fictitious notice period financially.
- A balanced package combines the date, the payments and the guidance.
- Outplacement is often funded separately from the transition payment.
- Release from work during the notice period can create room for orientation.
- A later termination date can increase income security.
- The fictitious notice period is an important calculation point in the overall picture.
Common pitfalls around the fictitious notice period and the VSO
One of the biggest pitfalls is that employer and employee look only at the gross amount of the payment and the end date, without taking the fictitious notice period and UWV’s WW rules into account. It then seems attractive to end the employment quickly for a slightly higher amount, but afterwards it may turn out that the WW benefit starts later than expected.
Another pitfall is that outplacement is only arranged after the termination date, whereas you can already start an outplacement programme during the notice period. This increases the chance that you will find a new position directly following your current job, with no period of unemployment or only a very short one. Anyone who lets this opportunity slip often only starts applying for jobs when the financial pressure is already high.
Finally, there is the risk that the VSO is insufficiently tailored to your specific situation. Think of a combination of reorganisation, illness or long-term incapacity for work, where second-track reintegration or even a third track sometimes comes into play. Information about outplacement in the event of illness shows that additional rules apply here and that tailored work is needed to align both the legal and the career aspects properly.
- Too little attention to the WW rules can create an income gap.
- Focusing only on the amount of the payment is often too limited.
- Starting outplacement too late reduces the chance of a smooth transition.
- Complex situations call for tailored work in both the VSO and the guidance.
- Coordination between legal advice and career guidance prevents mistakes.
Step-by-step plan: how to tackle the fictitious notice period and outplacement together
Anyone who receives a proposal for a settlement agreement is well advised to work in a structured way. The fictitious notice period is one of the elements you consciously look at. By acting step by step, you reduce the chance of unnecessary financial or career risks and make optimal use of the possibilities of outplacement.
Start by mapping out your current legal position: type of contract, length of service, notice period and any cao. Place the VSO proposal next to it and check whether the proposed end date fits the employer’s notice period. If necessary, seek legal support to test the consequences for your WW benefit. In parallel, you can discuss with a career professional what a realistic lead time towards new work is for you, for example based on the average duration of an outplacement programme.
After that, you can talk to your employer about the combination of financial arrangements and outplacement. Information about how to raise the subject of outplacement can help you conduct that conversation well. This way you can look together for a solution in which the fictitious notice period is processed correctly, the WW benefit can follow on and you receive professional guidance towards a new, suitable job at the same time.
- Map out your contract type, years of service and notice period clearly.
- Test the proposed end date against the employer’s period.
- Have the consequences for WW and the fictitious notice period assessed.
- Discuss outplacement and the desired duration with a specialist.
- Negotiate a coherent package of date, payments and guidance.
Summary: fictitious notice period, settlement agreement and outplacement combined
The fictitious notice period in a settlement agreement is a legal-technical concept with very practical consequences. In the case of termination by mutual consent, UWV assumes the employer’s notice period, even if you actually stop working earlier. That fictitious period determines when your WW benefit can start and whether an income gap arises.
By taking good account of the fictitious notice period in the VSO, you prevent your WW rights from being jeopardised or from being without income for longer than necessary. Arrangements about the termination date, payment, release from work and outplacement should therefore always be considered together. Precisely in a phase in which you are leaving your current job, you benefit from clarity, financial security and professional guidance towards a new step.
Outplacement plays an important role in all of this. It offers structure, perspective and concrete support in finding suitable work, while the legal arrangements in the settlement agreement form the financial basis. Anyone who aligns both properly increases the chance of a smooth transition to a next position and considerably reduces the stress around dismissal and unemployment.
Do you have doubts about what your VSO contains? Have your settlement agreement reviewed by a Care4Careers expert, so you can be sure you are not overlooking anything.