Employers may only terminate or cancel an employment contract unilaterally when:
- one of the grounds referred to in law applies (notwithstanding special cases such as dismissal with immediate effect and dismissal during the trial period) and
- it is not possible to reassign the employee to a different suitable position.
The reassignment obligation referred to under (2) entails that employers must investigate whether it is possible to reassign the employee within a reasonable term to a different suitable position, either or not with the help of training. The reassignment obligation always applies, unless the employee is discharged on the grounds of culpable acts or omissions. Although the reassignment obligation on its own is merely a best efforts obligation on the part of the employer, employers are expected to adopt an active attitude. If the reassignment obligation is not fulfilled properly, employers run the risk that the application for termination will be rejected by the court or the Dutch employee insurance agency UWV. This blog provides a step-by-step plan by which employers can successfully fulfil their reassignment obligation.
Step-by-step plan for reassignment to a suitable position
- Is a suitable position available?
Employers will first have to investigate whether a suitable position is available. A position is suitable when the position links up with the employee’s training, experience and capacities. The relevant factors are not just the level of the activities performed by the employee at that time, but also the experience and knowledge gained by the employee in any prior positions and trainings. This means that a higher or lower position might also qualify as suitable if the employee has sufficient competences to fulfil the position.
It is not sufficient for employers to point out vacancies or offer assistance with job applications. In practice, this means that employers must adopt an active attitude when searching for a suitable position; any obstacles standing in the way of a suitable position must be removed as much as possible. It should be noted that employers can also be expected to make an effort to find a different suitable position.
In addition, the search for a different suitable position is not limited to the business where the employee works at that time. Employers must also investigate reassignment options within other businesses/locations of the group they are part of.
- Can a position qualify as suitable through training?
In the context of the reassignment obligation, employers must investigate whether the employee can be reassigned to a position through training. Positions that did not qualify as suitable before but that could be eligible for reassignment after training must also be offered to the employee.
The question is how far the scope of the obligation to provide training extends. Training should mainly be considered to be (short) programmes/courses that will allow the employee to be deployed in the relevant position within the reasonable reassignment period (1 – 4 months, depending on the statutory notice period). The training need not necessarily be completed at that time. The exact extent of the scope of the training obligation should always be assessed on a case-by-case basis, taking into account the financial capacity of the employer, the cost and duration of the training and the duration of the employee’s employment, among other things. It is important to note that, in this context, it concerns training necessary for reassignment to a specific position. It is therefore not a general training obligation.
- Will a suitable position become available within a reasonable period?
The law states that reassignment must take place within a reasonable period. The reasonable period referred to in law is equated with the statutory notice period that must be observed. The notice period varies (between 1 and 4 months) depending on the length of the employment. Any longer or shorter notice period agreed between the parties will be ignored in this context. The search for a suitable position must therefore cover the statutory notice period. This means that employers must consider not only the current list of vacancies but also any positions that will become available within the relevant reasonable term. It is important to note in this context that positions occupied at that time by temporary employees or self-employed persons also qualify. If the employee can prove that such a position will become available within the reassignment period, the court will not cancel the employment contract.
- Is reassignment logical?
In some cases, reassignment may not be logical for the employee or employer despite the availability of a suitable position, for example when the employee would be significantly worse off in income or be forced to travel too far when reassigned to another location. Other examples include a (seriously) disrupted working relationship or inadequate performance by the employee, when the employer believes that the employee lacks certain core competences required for the relevant ‘suitable’ position. Whether such an exceptional situation is at hand will have to be assessed on a case-by-case basis.