Although the corona crisis has fortunately been behind us for a while now, the NOW files are far from over. The NOW (the Temporary Emergency Employment Bridging Measure) was a godsend for employers during the corona crisis. In principle, employers facing a drop in turnover (of at least 20%) were entitled to an allowance to continue paying their employees' wage costs. The subsidy could be applied for quite easily and then implementing body UWV paid an advance on the subsidy in almost all cases.
Only later is the subsidy finally calculated. This is done on the basis of the actual drop in turnover, at which point a much more critical examination is also carried out to see whether the employer meets all the conditions of the NOW scheme. This examination often reveals that the employer is actually not entitled to NOW subsidy according to UWV. In that case, the advance received must be repaid. In practice, this leads to much discussion.
As an employer, are you also faced with a repayment request of the advance amount, because UWV is of the opinion that you are not entitled to a final subsidy? And do you doubt whether the recovery is justified and would like to seek advice on options to challenge the decision in objection or appeal? If so, it may make sense not to resign yourself to this decision, As illustrated by, among others, this recent decision of the District Court of The Hague of 12 December 2023 shows.
This ruling involved Loka Liften B.V. ("Loka") which applied for a NOW subsidy and received an advance on the subsidy. Loka then asked the UWV to calculate the final subsidy. Thereupon, the UWV decided that Loka was not entitled to NOW subsidy after all and had to repay the advance of €46,785 received.
Loka disagrees and files an objection. The objection is declared unfounded after which Loka decides to appeal to the administrative court. To the court re-explain the situation.
A dispute arises with UWV over the calculation of the wage bill. This is because Loka was taken over by the parent company and Loka's staff transferred with it. Because of the takeover, Loka no longer employs staff in the period for which NOW subsidy was applied for. The wage bill in that period was set at zero and therefore no comparison can be made with the wage bill in the reference period. To avoid this, the payroll tax numbers of Loka and the parent company (which had taken over the staff) should have been linked.
The UWV indicates that takeover cannot be taken into account because payroll tax numbers are only linked if no staff are employed in the reference month, but they are employed in the subsidy month. In Loka's case, the situation is the opposite: it employed staff in the reference month and precisely not in the subsidy month.
Therefore, Loka requests the UWV to look at both Loka's and the parent company's wage bill in the reference period and in the subsidy period to determine the wage bill. UWV indicates that Loka should have submitted a request to UWV for this purpose. However, Loka did contact UWV for this when calculating the final subsidy. It believes this should be construed as submitting such a request.
The court indicates that the takeover is seen as a purely administrative change. Purely administrative changes, such as change of wage declaration number or takeover should not be an obstacle to claiming the NOW. This was previously established in Minister Koolmees' 2020 letter. Businesses that fall by the wayside due to administrative obstacles are urged to object so that the UWV can assess the individual case. In doing so, the UWV is said to try as much as possible to do justice to the purpose of the NOW scheme.
According to the administrative court, the UWV failed to take into account the purpose of the scheme. Insufficient reasons were given as to why the wage bill of both Loka and the parent company cannot be taken into account when determining the final subsidy. UWV is therefore ordered to take a new decision, taking into account the considerations of the administrative law judge. Although it is not known what new decision was taken, it seems to be a positive outcome for Loka.
Have you (recently) received the final calculation of your NOW subsidy received from the UWV and disagree with the decision? Or would you like to seek advice on your options to challenge the decision in objection or appeal? Then contact (one of) our employment law specialists.