As of 1 July 2015, Article 7:669 of the Dutch Civil Code provides that an employer can terminate the employment agreement in case of a "reasonable ground" for dismissal. In addition, the employer has to make sure that suitable reassignment of the employee, within a reasonable period, either with the help of training or education is not possible or reasonable.
The reasonable grounds for dismissal, which are exhaustively mentioned in Article 7:669 par. 3, are as follows:
7:669 par. 3 | Reasonable ground | To demonstrate plausibly that: |
A | Expiration workplace | Due to economic circumstances it is necessary that the workplace expires / within a future period of 26 weeks |
B | Long-term illness or disability | No recovery is expected within 26 weeks / stipulated labor can not be conducted in a modified form / no prohibition of termination |
C | Regularly not being
able to perform work
due to illness or disability | Unacceptable consequences for business operations due to regularly sickness absence / no question of inadequate care from employer / no recovery within 26 weeks / stipulated labor can not be conducted in a modified form |
D | Dysfunctioning | Timely notified / set out improvement or action plan / no question of inadequate care from employer or lack of possibilities of training or education |
E | Culpably acts or omissions employee | Continuation can not reasonably be expected from employer |
F | Conscientious objection | Conscientious objection / implementation activities in a modified form is not possible |
G | Disturbed working relationship | Continuation can not reasonably be expected from employer |
H | Other grounds | Continuation can not reasonably be expected from employer / specific conditions (detention in custody / missing work permit) / no residual ground (!) |
Dismissal ground determines "dismissal route": UWV (Dutch Employee Insurance Agency) or the subdistrict court
Regarding the "dismissal route", as of 1 July 2015 an employer cannot choose the authority – UWV or subdistrict court – which will assess the termination of employment. The ground for dismissal will determine the dismissal route.
Termination of the employment agreement due to economic reasons or after long-term illness or disability (grounds A or B), will be assessed by the UWV. The UWV dismissal procedure and deadlines are set out in this scheme. The UWV provided forms for submitting an application for termination of the employment agreement, which can be found here, under the heading "ontslag".
As per 1 July 2015, the use of these forms are mandated under the "Decision Mandatory use dismissal application forms UWV", this decision can be found here.
Termination of the employment agreement due to personal reasons (grounds C-H) will be assessed by the subdistrict court. With the introduction of the grounds for dismissal due to personal reasons (C-H), it is not intended to make a change in the grounds for dismissal such as those included in the Dismissals Decree ("Ontslagbesluit"). Except the explanation of the grounds for dismissal (as listed in the table under C-H) there are no guidelines or subordinate legislation issued on how to fill in or demonstrate the grounds for dismissal. The legal practice and (future) case law will have to learn how employers can demonstrate the grounds for dismissal.
The subdistrict court and the UWV will review on strict requirements. If it is clear that the inadequate performance of the employee is the result of insufficient training or education, this can be blamed to the employer, with the result that the UWV or judge do not consider plausible that there is a reasonable ground for dismissal of the employee.
What are the possibilities of appeal?
See the article "New dismissal law; more complex and stricter".
Prior legislation
Prior to 1 July 2015, the grounds for dismissal were not included in the law, but in the Dismissals Decree.
Contrary to the UWV, the subdistrict court judge was able to involve all the circumstances in his decision of termination of the employment agreement.
The UWV had drawn up "Policy Rules for Dismissals", to carefully and uniformly assess applications for dismissal.
Practical pointers
- In order to review the ground for dismissal by the UWV or the subdistrict court, it is important that a complete personnel file is consistent with the requirements of the legislation. Good documentation is of essential importance.
- Choose at the start of preparations for the dismissal and at the start of the (resignation) personnel file on what "reasonable ground(s)" the dismissal will be based.
- Maintain complete files for each ground for dismissal.
- Please note the timing. Out of the personnel file it must appear that the decision of dismissal based on personal circumstances was well thought-out by the employer.
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