Dysfunction and dismissal in Dutch Employment Law: call our Amsterdam lawyers

Dysfunction and dismissal in Dutch Employment Law

Sometimes an employer, for example in case of dysfunction, will move the employee back to another, lower position (demotion). A Dutch lawyer specializing in labor law can not always fix that. There is a lot of case law in The Netherlands on dysfunction and dismissal, but there is not so much to be found on the possibility of an employee being assigned another position, or being demoted to the previous position because of poor performance. The employee will then, if the employer stands firm, have to initiate summary proceedings to regain the position last held. What are the legal chances of an employee in summary proceedings if he or she wants the old position back after a discussion about good performance? Our lawyer in Amsterdam can advise you.

Call our employment lawyers: 0031 20 – 522 1999  

Performance and improvement plan according to

Dutch Employment Law

Normally, in the case of a permanent position, the employer would first have to enter into a discussion with the employee and implement an improvement plan. Some employment contracts, however, exclude this possibility, for example if it is agreed in advance that if the job requirements are not met, the employee will be transferred back to the old or a suitable position. This means that the case law on malfunctioning is partly not applicable to these kinds of cases, because that case law on malfunctioning mainly relates to jobs with a longer duration.

Promotion with a conditional character: the employee must prove himself

Some ‘promotions’, however, are of a conditional nature whereby the consequences have already been laid down in the employment contract beforehand. In itself, such an agreement is permitted according to Dutch Employment Law, or at least it is not contrary to mandatory law. According to case law, however, there are general rules for when the employer believes that someone is not functioning well and how the court should deal with this. The most important guidelines that could apply are as follows.

What is dysfunction according to Dutch case law?

According to Dutch case law, dysfunction means ‘an inadequate fulfillment of the job requirements; the failure of an employee to properly perform tasks’. In general, this means that ‘the performance does not meet the expectations of the employer’. To determine whether this is the case, according to a 2018 Supreme Court ruling, the employer has ‘a certain amount of discretion to assess whether the employee meets the job requirements’.

Does an employer have to prove dysfunction?

In concrete terms, this means that in a possible court case in The Netherlands, the employer (only) has to make it ‘sufficiently plausible’ that there is ‘unsuitability’. This means that the employer does not have to prove unfitness. The Amsterdam Court of Appeal considered this in a judgment, which the Supreme Court approved:

‘Furthermore, it is clear from the parliamentary history that it is primarily up to the employer to assess whether an employee still meets the requirements of a position … An employer will therefore not have to prove each individual point of criticism of the functioning; he has his own freedom of assessment, which must, however, be able to stand the test of reasonableness as far as the criticism is concerned’.

In concrete terms, this means:

• that the employer does not have to prove for the purposes of reassignment that an employee did not meet the job requirements,
• and that in the first instance it is the employer who decides whether or not the requirements were met (within reason).

Is there a legal obligation to return to a previously held position?

Furthermore, it appears that the judge is generally reluctant to grant this type of claim in summary proceedings. The judge will test this against good employment practices. Such a claim was rejected by the Rotterdam subdistrict court on the following grounds:

‘First and foremost, there is no statutory obligation to return to a previously held position as such. However, the circumstances of the case may mean that an employer is not acting as a good employer if he does not reinstate the employee in his previous position. Whether that situation arises depends on the nature of the employment contract, on the agreed work, as well as on the special circumstances of the case. … On this state of affairs and on the basis of what the Employer has brought forward, the Subdistrict Court is of the opinion that, despite the mistakes the Employer made during the improvement process, the Employer’s interests in having a practical trainer with sufficient capacities and support must, in the given circumstances, weigh heavier than the employee’s interests in being returned as a practical manager’.
Advice from a lawyer in Amsterdam about reassignment to a previously held position.

If you believe you have been unfairly laid off, you should contact WS Lawyers in Amsterdam. 

Questions about being reinstated according to Dutch Employment Law?

We have many international clients. WS Advocaten Amsterdam’s specialist team of employment lawyers have the experience and approach you need. Our lawyers are experts in providing strategic employment and legal support. To speak to a member of the Dutch employment law team about an employment law matter, get in touch with us today by calling 0031205221999.