Can the employer withdraw the offer to extend the employment after changing his mind?
Offer and acceptance
Any contract, even the employment contract, is concluded by the principle of offer and acceptance (aanbod en aanvaarding). This can be done orally or in writing.
The facts of the case
This happened in the case that came before the District Court Midden-Nederland. In this dispute, the employee was working with a one-year contract for the employer. During a performance review of the employee on 4 May 2022, the employer informed the employee that she wanted to extend the employment but that the employee had to improve her performance based on an action plan, which the employer prepared with a deadline of July 2022. On 12 May 2022, the employer sent the employee via Docusign an offer (already signed by the employer) to renew the employment contract for one year.
On 18 May 2022, the employee talked with the director and a manager about renewing the employment contract. The employer responded negatively to the employee's request for an employment contract for an indefinite period. The manager, however, committed to assessing whether the extended contract could be converted to an indefinite one when the targets set out in the action plan were met. Later that day, the employee invalidated the offered fixed-term employment contract on DocuSign for the following reason: expired. The employee received a notification of this. The next day, the employee requested to send the offer again and told the director and manager that she was pregnant.
On 23 May 2022, the director and manager informed the employee upon her arrival at the office that the offer to renew the employment contract had been withdrawn. The employment contract would end on 13 May 2022, and the employee had been suspended until then. By email dated 31 May 2022, the employee informed her employer that she disagreed with the withdrawal of the extension and claimed the transition fee and a notice fee.
The employee argued that she accepted the offer made by the employer during the performance review on 18 May 2022 after receiving the manager's commitment.
The court's decision
The court starts with the principle of offer and acceptance. Based on this principle, an offer can be withdrawn as long as the employee has not yet accepted it. However, this may be different if the withdrawal comes suddenly while the parties are still negotiating and could therefore rely on them to conclude a new employment contract.
The employer invalidated the offer on 19 May 2022 but only notified the employee of this on 23 May 2022. According to the court, if the employee had decided to withdraw her offer on 18 May 2022 permanently, it would have been reasonable for her to inform the employee of this in the conversation of 19 May 2022. The employer did not do this. By doing so only after she became aware of the pregnancy, it is suspected that the employer withdrew her offer to extend the employment contract with the employee because of her pregnancy. But even if this were not the case, the employer acted contrary to good employment practices.
Good employment practises
The employer acted contrary to 'good employment practises' (goed werkgeverschap) because he didn't warn the employee that the (digital) offer of extending the contract would be withdrawn if the employee didn't (digitally) sign the same day. Therefore, the employee did not need to be prepared for this. Furthermore, the negotiations were about the extension for a definite or indefinite period, not about whether the contract would be extended.
In the court's opinion, the employee's conduct sufficiently shows that she accepted the offer, if not in, at least after the performance review of 18 May 2022. Therefore, the employer was not free to withdraw the offer. The employment contract was extended for one year.