Termination of the employment contract often occurs by mutual agreement. The employer and employee then set forth the terms of the termination in a termination or settlement agreement.
It is possible that the employee has already started applying for other jobs or setting up their own business prior to or during the negotiations regarding the termination. Should they report this to the employer? After all, if the employee already has prospects for other work, the employer may not want to conclude the termination agreement, or may no longer wish to do so under the same terms. Whether the employee has a duty to disclose depends on the situation.
Concrete prospect of other work?
In any case, for a duty to disclose to exist, there must be a concrete prospect of other work. If the employee has already signed an employment contract or contract for services, there is little or no room for debate on this point. But even if no signed agreement is in place yet, there may still be a concrete prospect of other work. This is the case when negotiations regarding it are at such an advanced stage that it may be assumed that a concrete and detailed offer will in all likelihood be accepted by the employee. The fact that the employee has already started applying for jobs or is exploring entrepeneurship, where in general terms ther is a chance of obtaining.
Spontaneous duty to disclose?
Case law is not unambiguous regarding the question of whether the employee must disclose a concrete prospect of other employment on their own initiative prior to signing the termination agreement. A spontaneous duty to disclose can in any case be assumed if it should have been clear to the employee that the fact that he had a concrete prospect of other work was of material importance to the employer when concluding the termination agreement. The employer may then take the position that the termination agreement must be (partially) voided on the grounds of fraud or mistake. Whether a claim of fraud or mistake succeeds ultimately depends on the precise circumstances.
Inquire or include a statement in the termination agreement?
Employers would be wise to ask the employee whether there is already a prospect of other work and to record this in writing. It is best to include a provision in the termination agreement in which the employee declares that, at the time of signing the termination agreement, they have no concrete prospects of other employment. If that declaration is found to be false, this could, for example, result in the employee no longer being entitled to the agreed.
Questions or need advice?
If you have questions or would like advice on this topic or other employment law issues, please contact one of our employment law specialists, Lisanne Somers or Ine Swennen.
They can be reached at 00 (0) 43 321 6640.
Sources:
– District Court North Holland 24 december 2025, ECLI:NL:RBNHO:2025:15473
– District Court Gelderland 19 april 2024, ECLI:NL:RBGEL:2024:5526
– District Court Midden-Nederland 5 juli 2023, ECLI:NL:RBMNE:2023:3330