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A non-EU citizen accepted an offer of employment in writing via email for a company based in the Netherlands. They sent their passport and other documentation to the company to begin the process of acquiring the necessary company-sponsored visa for their employment, as well as internal HR processes.

Days later, with no communication in the interim, the individual changed their mind and decided against taking the offer. They once again informed the company via email.

Representatives of the company wrote to the individual to notifiy them that, whilst no contract of employment had been signed, the individual was in breach of contract (implicitly affirming the acceptance via email constituted a contract). On this basis, they sent an invoice itemising 1. Administrative Actions, 2. Application permit, and 3. Starting a new recruiting and selection procedure as costs incurred.

There are two primary questions stemming from this scenario.

  1. Does the email constitute a contract under Dutch or EU law, and is the individual in breach of it?
  2. If (1), what liability does the individual have, if any, for the costs incurred by the company and what is the legal basis for this?

A related question is to do with the enforceability of this given that the individual does not belong to a the Dutch or indeed any European jurisdiction.

2 Answers 2

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Does the email constitute a contract under Dutch or EU law, and is the individual in breach of it?

This is absolutely a contract: an offer was made and accepted.

As to whether the individual is in breach of it: probably not.

An employment contract can always be ended by the employee: indentured servitude being illegal in Holland, and, indeed, everywhere. If you have had the job for less than one month (which you have, 0 days bring less than one month), there is no notice period required by the employee.

what liability does the individual have, if any, for the costs incurred by the company and what is the legal basis for this?

Since the employee has not breached the contract, there is no basis for contract damages.

If the employment contract explicitly states that such costs are chargeable and under wha circumstances then the employee may be liable if the circumstances are met.

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    "If you have had the job for less than one month (which you have, 0 days bring less than one month), there is no notice period required". The OP's issue has nothing to do with notice periods. "there is no basis for contract damages". That rationale is conclusory and unlikely to survive the Haviltex rule insofar as no company would spend money on a work permit for a candidate who works zero days there. Hence the importance of assessing the contract language and other circumstances missing in the OP's description. Feb 4, 2022 at 13:08
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Does the email constitute a contract under Dutch or EU law, and is the individual in breach of it? what liability does the individual have

An email that reflects the candidate's acceptance to be employed at the company constitutes a contract or agreement. However, a scrutiny of the terms of the email messages is crucial for ascertaining whether a party's change of mind causes any liability.

If the terms of the emails are inconclusive in regard to [compensation for] damages, the controversy could be decided on equitable grounds. This requires an assessment of the factual and legal circumstances of the matter. For instance, a lengthy and uncertain process for a work permit is hardly ever a good reason for the candidate to decline/end a more certain employment opportunity/position elsewhere and put on hold his career and livelihood in the meantime. Every company knows or should know that, whence this company's failure to timely address that risk in such scenarios tends to forfeit its entitlement to recover.

The company's possibility to withdraw its petition might enable it to recover from the immigration authority much of the petition fees. Accordingly, the company's negligence might forfeit recovery of those fees at all.

Also the company's itemizing of costs seems redundant and a sign of incompetence. "Selection & recruitment procedures" are basically the only "administrative actions" a company has to perform when hiring someone. This is especially true in the case of intermediaries (you did not specify whether the company is actually an intermediary). The company's attempt to make a distinction between these two is unsubstantiated and devoid of merit.

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    This answer has received a downvote. Please explain the basis for the downvote, ideally providing direct references.
    – Anil
    Feb 3, 2022 at 20:06

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