Redeployment: The legal obligation before dismissing an employee

Roos van Zaltbommel from GMW Lawyers explains the redeployment obligation in the Netherlands and clarifies what an employer must do in this context.

The redeployment obligation is when an employer must make an effort to place an employee in another position in their company or organisation. This often occurs because terminating an employment contract - without an employee’s consent - is not easily done in the Netherlands.

An employment agreement can only, in principle, be terminated if the following conditions have been met:

• One of the reasonable and legal grounds for dismissal are provided;
• Redeployment of the employee to another suitable position within the company is not possible.

If the employer has not met both of these conditions, then the employment contract cannot be terminated without the employee’s consent.

An active approach

An employer is expected to have an active attitude throughout this process; they must really make an effort to try to redeploy the employee. Simply pointing out open vacancies within the company to the employee is insufficient to meet the redeployment obligation.

If there is a vacancy open for a suitable position, the employer must be proactive. This means that the employer must invite the employee for a job interview or offer the position straight away. Further, an employer must be able to provide justification if they reject the employee for a position that is actually suitable for them.

Personal approach

An employer is also expected to adapt its approach to the employee. This may mean that the employer has personal discussions with the employee and removes possible barriers.

In certain cases, the employer may also be expected to offer training to make a position suitable. Again, the employer is expected to take an active and leading role in this situation and they must enrol the employee in courses or training programmes. Merely offering training opportunities is insufficient to meet the redeployment obligation.

Company-wide redeployment

If the employer is part of an international group, the employer must look into the possibility of redeploying the employee to another entity or branch of the company. The employer will then need to engage in conversation to discuss the possibility of redeployment to another global location.

Suitable position

The employer must try to place the employee in a suitable position. Case law shows us that a position is considered suitable if it matches the employee’s knowledge, experience and education.

Please note that if an employer has made sufficient efforts to redeploy the employee, then the obligation, in this regard, has been fulfilled. If there are reasonable grounds for dismissal, the employee's refusal of a suitable position may therefore result in the employer being able to successfully terminate the employment contract.

Case-by-case basis

As the information above shows, much is expected of an employer under the redeployment requirement. What specifically can be expected from an employer in fulfilling the redeployment obligation will have to be assessed on a case-by-case basis.

Not sure what to expect from your employer in the Netherlands? GMW Lawyers helps expats understand their rights and obligations in accordance with Dutch laws. Contact one of their lawyers at +31 (0)70 217 1935 or [email protected].