When can an employer dismiss an employee? In Dutch labor law, the preventive dismissal test applies to the UWV or the subdistrict court. We explain which protection an employee has and what the employer should take into account.
Dismissal
When is the worker protected?
Not all employees have the same protection against the termination of the employment contract. Employees with flexible contracts (agency contracts, on-call contracts) are much less well protected than employees with open-ended contracts. Employees with indefinite contracts are very well protected, although an employee with a fixed-term contact without an interim notice clause will also not be easily dismissed. In all cases, summary dismissal is possible if an urgent reason is present.
Flexible contracts
By their nature, these contracts are designed so that the employer and employee can terminate the contract or scale down the work relatively quickly. With an agency contract, in most cases the employment contract can be terminated if the hiring party informs the agency that the temporary worker is no longer needed. With on-call contracts, it is possible to call up the employee for work less or no longer. After a period of twelve months, the employee is entitled to a fixed scope of work and the employer must offer this.
Fixed-term employment contract
Without an interim termination clause, it is not possible to terminate a fixed-term employment contract earlier than the agreed end date. If an interim notice clause has been included, the preventive dismissal test (see below) still applies. Therefore, it will often be decided not to extend the employment contract. In that case, the employer must give timely notice, otherwise he risks a penalty. The employer cannot endlessly offer fixed-term contracts; on the basis of the chain regulation the contract will eventually be converted into a permanent contract.
Preventive dismissal test
In the case of open-ended employment contracts, an employer can only grant a unilateral dismissal if he has obtained permission from the UWV or the court. The reason the employer gives for the dismissal determines where he must obtain permission.
UWV
If the employee has a long-term disability or the position has been abolished for economic reasons (e.g. reorganization) and the employer wants to terminate the employment contract, a dismissal permit must be obtained from the UWV.
De werkgever heeft een wettelijke verplichting om gedurende een periode van twee jaar van arbeidsongeschiktheid wegens ziekte het loon van de werknemer te betalen. Na deze periode heeft de werknemer aanspraak op een WIA-uitkering en kan de werkgever het UWV verzoeken om een ontslagvergunning.
An employer must be able to provide sufficient evidence to the UWV that a position has been abolished for economic reasons. Although a certain degree of entrepreneurial freedom is assumed here, there must be a well-founded reason for dismissing the employee.
Cantonal Court
The employer will have to submit a request to the subdistrict court if there are any of the following grounds for dismissal:
- regular illness of the employee causing unacceptable impact on business operations;
- Dysfunction of the employee;
- culpable actions of the employee;
- serious conscientious objection on the part of the employee which prevents the work from being performed;
- A disrupted employment relationship.
In addition to these grounds for dismissal, there is also the residual category ("other circumstances") and it is possible that a combination of these grounds could also lead to dismissal ("cumulative grounds"). If there is a basis for dismissal, the employer also has the obligation to investigate whether the employee cannot fill another position within the organization, also known as the obligation to redeploy.
All grounds for dismissal are briefly discussed below.
Regular absenteeism
If an employee is regularly ill, this is not yet a reason for dismissal. This regular illness must disrupt and endanger the employer's business operations. Most companies can compensate for the frequent loss of an employee with other employees, which means that the business operations are hardly ever really endangered. Therefore, in practice, this ground is almost never used as a reason for dismissal.
Dysfunction
When an employer believes that an employee is not performing his or her job properly, this may be a reason to proceed with dismissal. Before it comes to that, the employer must communicate that it believes the employee is not functioning properly and give the employee sufficient opportunity to improve his or her functioning. The employer must also provide support if the employee needs it. Think for example of a training course or guidance from experienced colleagues.
Culpable Actions
Although this is a fairly general category, in many cases it is clear whether there is culpable conduct. It must involve acts or omissions by the employee, as a result of which the employer can no longer be expected to continue the employment contract. This could include regular tardiness, refusal to carry out an assignment, criminal offenses, alcohol and drug abuse and failure to comply with reintegration obligations.
If the behavior even qualifies as grossly culpable, the employee may lose his right to a transition payment.
Conscientious objection of the employee
In the event that the employee cannot perform his or her job due to a serious conscientious objection. A serious conscientious objection exists if the employee is in distress of conscience if, while working, he is forced to do or refrain from doing things that are not in line with his personal values and standards. These values and norms may be linked to a religion or philosophy of life. This basis is not very common in practice, which is also evidenced by the fact that this ground for dismissal has only been assigned once to date (2022).
Disturbed employment relationship
If there is such a disturbance in the working relations with the employee and restoration of the relations is no longer to be expected, the employer may request dissolution from the court. The employer will have to demonstrate that he has done everything possible to restore the relationship. The judge will also assess whether the disruption of relations was caused by the employee or the employer.
Breakup by mutual agreement?
It is also always possible for employee and employer to end the employment contract by mutual consent. Most employers will therefore want to first engage with the employee to discuss whether this is a possibility. It can be difficult to assess whether an offer of termination by mutual consent does justice to the situation without legal advice. Therefore, contact our specialists to assess the situation. In most cases it is not necessary to obtain permission from the UWV or the subdistrict court and the parties come to an agreement.
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