Rechtbank Oost-Brabant, 18-06-2025, ECLI:NL:RBOBR:2025:3492, 11511854 EJ VERZ 25-40

In de Code of Conduct van ASML staat onder andere:

‘De reputatie van ASML is afhankelijk van het gedrag van ons allemaal. Onze reputatie is de grondslag van het zakelijk functioneren van ons bedrijf in het verleden, heden en toekomst. Daarom:

Met ingang van 1 juli 2019 is [verzoeker] , naast zijn werkzaamheden voor ASML, een eenmanszaak gestart onder de naam van [bedrijfsnaam verzoeker] . In het uittreksel van het handelsregister van de Kamer voor Koophandel staan als activiteiten omschreven:

‘SBI-code: 6202 – Advisering en ondersteuning op het gebied van informatietechnologie

Computer en netwerkbeveiliging’

Op 14 augustus 2024 heeft [verzoeker] een e-mailbericht naar [C] verstuurd onder andere inhoudende:

‘Als je wilt weten wat exact de afspraken zijn met TCS, dan zal ik je door moeten verwijzen naar TCS zelf, zij kunnen uiteraard inzage geven in de financiële aspecten. Wat [C] verdiende is uiteraard aan [C] zelf om dit al dan niet met jou te delen. Mocht je willen weten wat [bedrijfsnaam verzoeker] precies factureert, dan moet ik je helaas teleurstellen. Dit is iets tussen [bedrijfsnaam verzoeker] en de agency (de agency die TCS heeft ingeschakeld).

De gemaakte afspraken zijn destijds door o.a. leden van de voormalige CISO afdeling goedgekeurd. En [C] weet overigens zelf wat TCS aan ASML in rekening brengt.’

Op 27 november 2024 is [verzoeker] op staande voet ontslagen. In de brief van 29 november 2024 van ASML gericht aan [verzoeker] staat onder andere:

‘(...)

Based on this discussion and the facts presented, ASML has decided to terminate your employment with immediate effect. From the outcome of the ethics investigation and our own research we can conclude on the following:

In a conversation with his department manager, a flex worker disclosed information regarding his hourly rate and his hiring construction involving the agency [bedrijfsnaam verzoeker] , an agency of which you are the owner. The flex worker informed his department manager that he was no longer able to work for ASML as the hourly fee, he received from ASML was not sufficient to provide for himself. This was surprising for the department manager to hear, as ASML paid a significant fee to this flex employee.

A preliminary factual assessment was conducted by RBA, where it turned out that you have been acting as a broker/agency in connection with the appointment of this flex worker in your department without prior approval of ASML. Factual assessment performed by the Ethics Office aimed to gather further information regarding:

• Hiring construction(s) within the SOC SIRT Team (at the time CDC Team) involving (the agency of) [bedrijfsnaam verzoeker]

• Disclosure of your ancillary activities

• The compensation you received via [bedrijfsnaam verzoeker]

On 27 November, we were informed of the outcome of the investigation with respect to your case. From the investigation we learned that:

• There have been at least 2 hiring constructions in which you or your company [bedrijfsnaam verzoeker] was involved.

• You are the owner of [bedrijfsnaam verzoeker] and have performed ancillary activities for [bedrijfsnaam verzoeker] and therefor have a personal financial interest in [bedrijfsnaam verzoeker] .

• According to you, your ancillary role “has been discussed with HR in 2019”, but there is no evidence that proves that this happened or that anyone within ASML approved of these activities.

• There is no written approval or acknowledgment by Management and/or HR in your personnel file or any other document, also not following the discussions around the hiring construction of the flex employees.

• (...)

After we informed you of the outcome of the ethics investigation, we gave you the opportunity to share your point of view with us. You explained that you introduced two flex workers to ASML by making use of a construction via your organization [bedrijfsnaam verzoeker] . You explained that in 2019, you asked verbal approval to perform ancillary activities to use your organization for “small security activities for third parties”, for example for a soccer club. You asked verbal approval from someone from HR called “ [F] ”, this is what you recalled, you don’t remember the exact name. You did not receive any approval in writing. You acknowledged you didn’t ask permission to use your organization as a broker party.

Regarding the hiring construction you stated that TCS would invoice ASML, and TCS pays the subcontractors Sisar BV and [bedrijfsnaam verzoeker] . You mentioned you did not force anyone to make use of this construction.

According to you, ASML approved TCS fee rates for both flex workers. You indicated to [G] that TCS’s fee rate were too high for both flex workers. You could not provide any evidence that this was indeed discussed. During our meeting you again did not want to disclose what you earned with this construction. You said the main reason for not cooperating was that you felt judged by ASML from the first moment the hiring construction was uncovered, and you didn’t have the impression you could do something about that.

From the meeting on 27 November, it has become clear that you did not provide any evidence of written approval for any ancillary activities were given, whereas it is clear from your contract of employment that written approval from your manager and HR is a requirement in order to work on an ancillary role.

• In the ethics investigation as well as during the meeting with us, you have neglected to be transparent about your existing and continued relationship with [bedrijfsnaam verzoeker] or the income you gained out of the hiring construction.

• The fact that you and your department were actively recruiting employees for ASML via [bedrijfsnaam verzoeker] implies a conflict of interest.

• In as far as you have given any information of [bedrijfsnaam verzoeker] and the hiring construction, you gave incomplete/insufficient information about your ancillary activities.

• When the (two) flex employees were hired, you were also not transparent about the existence of [bedrijfsnaam verzoeker] and your involvement with TCS and subcontractor Sisar BV.

• When this hiring construction was created, you were a people manager of the (two) flex employees that were hired via [bedrijfsnaam verzoeker] .

• With respect to your employment at ASML and more specifically your managerial role, you were responsible and (indirectly) involved in recruiting/onboarding these flex employees via TCS by arranging approvals for purchase orders made to TCS and being the responsible department manager of these flex employees. At ASML, we believe our people managers should be role models. This action is not in line with being a role model towards employees of ASML.

• This has created a situation of a (potential) conflict of interest and therefor impacts your integrity.

• You stated that you did not force anyone to make use of this construction. With this you seem to forget that you/your company controlled every aspect of the hiring construction.

• Even after the facts were presented to you, you were not willing to provide full transparency on the hiring construction and the income you and your company generated out of this construction.

• To at least one of the flex employees you did not disclose that you were actually receiving a compensation for their work at ASML.

• You mentioned several times in the meeting that your intentions were good and that you were always transparent to your manager about the hiring construction. Apart from the fact that we could not find any evidence with respect to this, we find it hard to believe that you have been fully transparent about the situation. We cannot understand why you chose to be not fully cooperative throughout the investigation of the ethics department.

• Even after the facts were presented to you, you were not willing to provide full transparency on the hiring construction and the income you and your company generated out of this construction.

• Your statements about a ‘risk premium’, and the use of sub-contractors do not justify the hiring construction you have put in place, nor the payments that have been conducted.

• By your actions, you display a lack of understanding about ASML’s Code of Conduct, more particularly your behavior is not in line with the principles of ‘We act with integrity’ and as part of the Care, Challenge and Collaborate values.

• Apart from that, as described in our Code of Conduct, you must avoid (potential) conflict of interest at all times, as a conflict of interest can influence your decision making, or be perceived to do so and puts your reputation and that of ASML at risk. Furthermore, maintaining or acquiring interests in other businesses and performing external professional activities in your own time is not permissible if there is an actual or potential conflict of interest.

• Apart from the code of conduct you acted contrary to your contract of employment. More specifically, you did not inform ASML about your ancillary activities/outside positions with respect to [bedrijfsnaam verzoeker] .

• In addition you did not meet the standards expected of ASML employees.

• Finally you did not show remorse on not complying to the Code of Conduct or your contract of employment, only to the fact you did not ask for written approval.

• We offer employees a lot of flexibility and freedom. In your position you were trusted to do your job without having someone review every detail of your work. In your position you were responsible to investigate security incidents. Therefor trust is an essential part of your position.

It is unfortunate that we have to arrive at the conclusion that your employment should come to an end. You did not act in accordance with your contract of employment, the ASML Code of Conduct thereby neglecting your responsibilities towards ASML.

As we informed you during the meeting, the above facts allow us to terminate your employment immediately, as the reasons mentioned above separately and jointly with each and every single one of these reasons, are considered a reason to terminate the employment with immediate effect. In addition your actions can also be considered as serious culpable conduct. We recommend that you seek legal advice. (...)’