When is a VSO voidable? Note these 4 grounds

A voidable VSO is a settlement agreement which can be legally undone. Also called: your VSO can be 'destroyed'.

Legally, this means that the agreement is treated as if it never existed. Your employment contract will then simply continue and all agreements from the VSO will lapse.

It is important to mention that the law has strict requirements for nullification of an agreement. So you cannot simply annul your VSO. You must be able to prove, for instance, that there was error. We discuss the 4 grounds for annulment.

Mistake is one of the most common grounds for annulment, according to our statistics.

An error occurs when you signed the VSO based on wrong information or did not get important information.

When is there an error?

• Your employer has given you incorrect information
• Important information has been withheld
• You would never have signed with the right information

A concrete example from case law (RB Den Bosch, case: ECLI:NL:GHSHE:2022:1186). 

In this case, a sick employee was not told that she had redundancy protection. The court ruled that the employer should have informed her of this. The VSO was annulled for error.

Note: Not every mistake leads to nullification. The error must be about essential points that influenced your decision. Not about details.

Fraud goes one step further than mistake. In this, your employer deliberately misleads you to get you to sign the VSO.

Examples of fraud involving deliberate deception:

• Employer lies about reorganisation that does not exist
• Employer lies about how the economy is doing and claims dismissal for business reasons

A VSO you signed at gunpoint is voidable. This need not be physical force. Psychological pressure also counts.

Examples of threat:

• "Sign now or I very nasty things are going to happen"
• "If you don't sign, I will make sure your next employer finds out what kind of employee you are"

A real-life example: an employee, after a summary dismissal immediately submitted a VSO. The judge found this to be a form of undue pressure, as instant dismissal requires a good reason for dismissal. The judge saw this as a threat in disguise.

In abusive circumstances, your employer takes advantage of your vulnerable position.

Situations where this may come into play:

• You are mentally or physically ill
• You have acute money problems
• You do not sufficiently understand the Dutch language
• There is a dependency relationship

Since the Work and Security Act every employee is entitled to a reflection period of 14 days. This means:

• You can revoke the VSO within 14 days of signing it
• This must be done in writing
• You don't have to give a reason
• The employer cannot exclude this right

Important: This deadline only applies if the employer took the initiative for the VSO. Did you take the initiative yourself? Then you do not have a reflection period.

Settlement agreements sometimes contain a clause stating that both parties have nothing more to claim from each other after signing, also called: final discharge. Or it may even contain clauses that both parties waive the right to set aside. 

But note that these clauses have limits and are not legally valid for the above reasons.

Indeed, case law is very clear on this: if the VSO itself came about under the influence of a will, this also applies to the exclusion clause.

An employee was reported sick and was given an ultimatum by her employer (Stamicarbon):

Either follow a treatment programme with a psychologist or leave through a settlement agreement. The employee opted for the VSO and signed it in August 2021.

The Court of Appeal of Den Bosch later ruled that the employer had given the employee "failed to inform her of her position as a sick employee (prohibition on giving notice, seeking work as an unfit employee and likely denial of benefits).".

The employer should have given more information about the (financial) consequences of her dismissal as a matter of good employment practice. Reason for setting aside the VSO was error.

Case: ECLI:NL:GHSHE:2022:1186

An employer incorrectly informed the employee about the effective date of the WW benefit. The employee agreed to terminate as of 21 March 2022 under the assumption that the WW benefit would start immediately, but this was not correct.

The court ruled that there was an error because "employer misinformed employee about the effective date of unemployment benefit". As a result of this incorrect information, the agreement could be annulled. Reason for setting aside the VSO was error.

Case: ECLI:NL:RBROT:2022:8254

Think your VSO is voidable? Then follow these steps:

• Within the cooling-off period? Revoke immediately in writing
• Grace period over? Seek legal help as soon as possible
• Gather all documents and communications

• Save emails, WhatsApp messages, letters
• Record what was said during conversations
• Ask witnesses to testify

• This must be done in writing
• State the ground for destruction
• Send by registered mail with acknowledgement of receipt

If your VSO came about through mistake, deceit, threat or abuse of circumstances, you are entitled to nullification. The law protects employees from unfair practices, even if you have already signed. Even if it contains vague clauses about exclusion from annulment, you can still have your VSO annulled.

Most importantly, act quickly. Within the 14-day cooling-off period, you can revoke without giving reasons. After that, it becomes more legally complex, but certainly not impossible.