Reassignment is tailor-made

Termination of an employment contract requires prior permission from the UWV or dissolution by the subdistrict court, except in cases of summary dismissal or probationary dismissal, for example. This is also known as the preventive dismissal test. With the entry into force of the Transparent and Predictable Conditions of Employment Act, these requirements must now be made explicitly known to the employee.

This preventive test examines whether there is one of the grounds for dismissal listed in the law, such as an economic reason, long-term disability, dysfunction, a disturbed working relationship, etc. The ground for dismissal itself determines whether permission must be requested from either the UWV or the subdistrict court.

Besides having reasonable grounds, there is another requirement to have the employment contract terminated. As an employer, you must make it plausible that the employee cannot be redeployed within the organisation. As an employer, you must therefore investigate whether the employee threatened with dismissal can be redeployed in a suitable position.

In practice, this obligation is often underestimated by employers, resulting in dismissal requests being regularly rejected on this very point. Extra attention to the re-employment obligation is therefore wise. Especially now that the number of reorganisations is increasing as a result of the current economic developments and the number of dismissal applications to the UWV logically also increases.

In this article, we briefly outline the requirements for reinstatement and provide some useful tips for practice.

Legal framework

The legal redeployment obligation means that the employer must do what is reasonably possible to redeploy the employee threatened with dismissal. When an application for dismissal is submitted, an assessment is made of whether the employee can be redeployed. To this end, the following are assessed:

1) Is it possible within a reasonable time?
2) Is there another suitable position available within the reasonable time?
3) Is this redeployment possible with the help of training?
4) Is the redeployment reasonable?

1. Reasonable time: Re-employment must be possible within a reasonable time. A reasonable period is equal to the statutory notice period. This is one to four months, depending on the length of employment. If an even longer notice period is agreed between the parties, the period that would apply by law nevertheless applies. The reasonable period starts to run on the day the UWV decides on the request for permission to terminate or the subdistrict court dissolves the employment contract. It is therefore a cut-off date that lies in the future and which you, as an employer, must “estimate”. After all, the decision day is not known beforehand. Thus, the longer the employee’s employment has lasted, the heavier the employer’s re-employment obligation is, as vacancies have to be investigated over a longer period.

2. Suitable job: A suitable job exists if it matches the employee’s education, experience and capabilities. As a rule, this concerns jobs that match the level of work an employee performs, but this need not always be the case. For example, in the case of dysfunction, a lower job level may be appropriate. Suitable positions involve existing vacancies, but also those that arise within a reasonable period of time. Also, (structural) positions that are already occupied by temporary workers, hired workers, on-call workers and workers who have reached the state pension age must be included.

3. Training: Jobs are also suitable if the employee can be made suitable for them within a reasonable period through training. This involves specific training that enables the employee to acquire the competences required for a possibly suitable position. It is up to the employer to actually register the employee for this course (instead of just offering or advising). Note that from 1 August 2022, the Transparent and Predictable Terms of Employment Act came into force (see also at the introduction). As a result, offering this training is also mandatory, as this training is necessary for the continuation of the employment contract. This compulsory training must be paid for in full by the employer.

4. Within reason: Re-employment is not within reason, for example, if there is dismissal due to culpable acts or omissions by the employee, dismissal due to illegality or detention of an employee. Reinstatement then does not ‘help’ to remove the ground for dismissal. Other cases are also conceivable where reinstatement would not be reasonable. One example is the situation where the employment relationship with the employer is disrupted. If re-employment as such does seem reasonable, the extent of this re-employment obligation also depends on what is reasonable. For example, the larger the employer is, the more is expected of the employer.

Pitfalls and tips
It does not follow from the law what the employer has to do concretely to fulfill its re-employment obligation. This has been further developed in case law, however. Nevertheless, we see a number of common pitfalls in practice. We list the three most important ones and provide some useful tips for practice:

1. Active and flexible attitude: employers often suffice with sharing an overview of vacancies available in the company or with a simple reference to the vacancies on the intranet, without discussing them with the employee or following them up further. This is insufficient for the redeployment obligation. In fact, the employer must take an active and flexible attitude. If there is a suitable position, this means that, as an employer, you must act proactively and invite the employee for a job application or offer the position directly. All in all, the employer should work with the employee to look for another suitable position within or outside its own organisation within reasonable margins. Of course, the employee will also have to take an active attitude and, within reason, cooperate with your employer’s initiatives.

2. Customisation: The redeployment obligation requires customisation. For this reason, sending a list of vacancies is not sufficient. The suitability of jobs must be examined for each individual employee. The employee’s wishes must also be taken into account. Furthermore, as an employer, you must be able to demonstrate why certain vacancies are not suitable and therefore not offered. In practice, we recommend having employees complete a redeployment form in which they can indicate their preferences regarding redeployment. This delineates the re-employment study and can also be used later to show why certain positions were left out. Based on this form, you as an employer can start your search for suitable positions and discuss eligible vacancies with the employee in one or more redeployment interview(s).

3. Group-wide: In many cases, employers only investigate redeployment possibilities within the branch or their own company (within the Netherlands) where, for example, jobs are to be lost. However, if a group of companies is involved, the search for suitable positions must be carried out on a group-wide basis, i.e. also at companies and branches other than the one where the employee works. This search is not limited to the Netherlands, but can involve the entire international group (if any). There are limits to this: for instance, if the employer can exert little influence on the hiring policy elsewhere within the group.

As redeployment is tailor-made and depends on the specific circumstances of the case, the redeployment will require its own approach for each individual employee. If you have any questions about the redeployment of one or more employees in your organisation and/or if you would like to have a review of whether redeployment is reasonable given your dismissal case, please contact one of our lawyers.