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Russell Advocaten B.V.
Amsterdam, Netherlands

An employer may only terminate the employment contract of an employee if he has reasonable grounds to do so. The law provides nine permitted grounds for dismissal. What are these reasons?

If an employer wants to dismiss an employee, he must check whether one of the nine reasonable grounds (a-i) set out in the law applies. The list of reasonable grounds is limitative: other grounds are not permitted. The ground must be “mature”, i.e. the ground must fully justify the dismissal. If there is such a ground, the employer must check whether the employee can be reassigned before the dismissal procedure is started.

The ground for dismissal determines which procedure must be followed. For a and b you have to go to the UWV, for c up to and including h to the subdistrict court. Dismissal without the permission of the UWV or the subdistrict court is only permitted in the event of dismissal with immediate effect. However, this falls outside the scope of the scheme of grounds for dismissal.

a. Commercial reasons

This is the case when jobs disappear as a result of reorganisation, restructuring, or termination of the company or part of the company. The job must then disappear for at least 26 weeks.

b. Long-term illness

After 2 years of illness, an employee can be dismissed due to incapacity for work. However, it must be clear that there is no chance of recovery or performing adapted work within 26 weeks.

c. Frequent sickness absence

If an employee is unable to work due to sickness or disability, he or she may be dismissed. However, it is required that the absence must have unacceptable consequences for the employer’s business operations. This applies, for example, to small businesses that have difficulties in coping with irregular absenteeism of employees or to employees whose presence is essential to the business operations, but who are difficult to replace on call. In addition, the absenteeism cannot be the result of insufficient care on the part of the employer with regard to working conditions. Here too applies that there is no chance of recovery or performing adapted work within 26 weeks.

d. Inadequate performance of the employee

Even if the employee is healthy, he may be incapable to perform his work. For instance, if he is repeatedly unable to perform tasks or if he is not able to obtain diplomas that are required by law. The employer must first warn the employee and give him the opportunity to improve his performance, for example by means of a plan of action. Inadequate performance may not be the result of insufficient care or training on the part of the employer.

e. Imputable acts or omissions of the employee

Sometimes even an employee who is capable to perform his work does things that cannot be tolerated. Or does not do things. Think, for instance, of safety measures that are neglected, despite repeated warnings. This ground does also include negative comments about the employer on social media. Then the employer in all reasonableness cannot be expected to continue to employ the employee. The bar for imputable acts or omissions is high, but lower than the bar for dismissal with immediate effect.

f. Refusal to perform work on grounds of serious conscientious objections

The employer must take into account serious conscientious objections on part of the employee. However, sometimes these conscientious objections prevent the performance of the agreed activities. Think of a refusal to perform work on Sundays in a shift work or a builder who refuses to construct a nuclear plant. In such cases, the subdistrict court may terminate the employment contract.

g. Disturbed employment relationship

Except for the previous grounds for dismissal, it may happen that the employer and employee simply do not get along anymore. A classic example is the affective relationship between employer and employee that is on the rocks. Another classic is the employer who wants to get rid of the employee and is aiming for the dismissal or departure of the employee, for example by an unjustified dismissal with immediate effect. There may also be a breach of trust as a result of imputable acts or inadequate performance that is, however, not severe enough for the termination of the employment contract. If the employer can be seriously blamed for the disturbed  employment relationship, the court may grant the employee a fair compensation, in addition to the transition compensation.

h. Remaining ground

The remaining ground contains all other grounds that are sufficient to dismiss an employee. This includes, for instance, a difference of opinion with a director about the policy to be followed or not getting government clearance to work at Schiphol Airport. This remaining ground or safety net provisions is not meant to “repair” another, insufficiently motivated, ground for dismissal.

i. Cumulative grounds

On the basis of the i-ground, several grounds for dismissal that have only partly materialized may be combined. An example is an inadequately performing employee, where the employer abandons the improvement process because the employment relationship with the worker has been disturbed. Only grounds c up to and including h may be combined.

More information

Do you want to dismiss an employee and know whether your reason for doing so forms a sufficient ground? Or do you want to know what other possibilities you have to terminate the employment contract? Please contact Jan Dop (jan.dop@russell.nl or +31 20 301 55 55).