Entitlement to Participation in the Remuneration Costs under the NOW after Error in Wage Statement?

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District Court of the Northern Netherlands, 25 August 2020, ECLI:NL:RBNNE:2020:2911


The Employee Insurance Agency (UWV) had rightly rejected an employer's application for participation in the remuneration costs under the NOW (Emergency Measure for Sustained Employment) for the fact that the employer had failed to declare the wages over January 2020 and November 2019. The fact that it was the accountant who had made an error in the wage statement was no reason to still grant the subsidy.

As a result of the corona crisis, a young company had experienced a significant loss of turnover. On the basis of the first temporary Emergency Measure for Sustained Employment (NOW-1), the company had therefore applied for participation in the remuneration costs for the months of March, April and May 2020 from the UWV. The NOW-1 entitles the employer to a subsidy of three times the wages over the month of January 2020 or, in case of absence of a wage bill over January 2020, three times the wages over the month of November 2019.
The UWV had rejected the application because in the employer's wage tax return the employer’s wage bills over January 2020 or November 2019 were lacking. The employer objected and argued that the wages had been paid in January 2020, but that so far no wage bill had been made by error of the accountant. The UWV declared the objection unfounded since the NOW-1 stipulates that adjustments to wage statements, made after 15 March 2020, will no longer be processed.
The employer then lodged an appeal with the Court of Appeal and requested a temporary provision. The Court in Interlocutory Proceedings, however, rejected the appeal because  in order to limit the risks of fraud and abuse  the regulation simply stipulates that adjustments to the wage bill after March 15, 2020 will no longer be processed for determining the wage bill. It is the employer himself who is responsible for the correctness of the wage tax return, even if he makes use of an accountant for this. Therefore, there was no exceptional situation and, moreover, the scheme does not provide for a hardship clause.
The claimed temporary provision was rejected and the appeal immediately declared unfounded.


The ruling of the Court in Interlocutory Proceedings is entirely in accordance with the text of the NOW, that simply has the date of March 15, 2020 as the deadline for adjustments of the wage tax return. Furthermore, already from the start, the Minister of Social Affairs and Employment had made it clear that it would be unavoidable that some employers would fall between two chairs in the provision of subsidies. And yet there is more going on.
A fact is that, in the meantime, the Minister twice informed the House of Representatives that “applications that are rejected in the regular processes will be assessed and processed in such a way during the implementation that, in as many cases as possible, justice will be done to the purpose of the NOW”.
Probably, the mask of rhetoric was deliberately chosen in order to avoid that the Minister would have to very concretely indicate what would be possible and what would not, but it is difficult to see this announcement as anything other than a sort of “ex-post hardship clause”. Employers, who are at risk of falling between two chairs when applying for a subsidy under the NOW, could make use of these announcements from the Minister in order to persuade the UWV to still qualify them for the subsidy.

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