Netherlands: Failure to Meet Reassignment Obligation cannot be fixed during Court Proceedings!
Authors: Ilse van Aert and Lydia Milders
On 15 March 2022, the Court of Appeal determined that an employer’s failure to meet the reassignment obligation (in Dutch: herplaatsingsplicht) cannot be remedied in the proceedings for termination before the subdistrict court. The employer must therefore have already complied with the reassignment requirement before the subdistrict court decides on the request for termination. If not, the request for termination must be rejected.
The suitable reassignment obligation
The employer can only terminate an employment contract if:
- There is a reasonable cause for it, and
- Reassignment of the employee within a reasonable period of time, with or without using schooling, in another suitable position is not possible or does not seem reasonable.
Thus, investigating the possibilities for suitable reassignment is a crucial requirement for a successful request for termination before the subdistrict court. The employer must make it plausible that it has fulfilled its obligation to reassign. The following requirements apply for a suitable reassignment:
- Reassignment in another position must be possible within a reasonable period of time (in principle, equal to the statutory notice period);
- It must be investigated whether the employee can, within a reasonable period of time, whether or not through schooling, perform another, suitable position;
- The position must be suitable;
- Reassignment must be reasonable.
A position is suitable when it matches the employee’s education, experience and abilities, with or without schooling. The suitable position includes both current vacancies and vacancies that will become available within a reasonable period of time, as well as positions that are already occupied by, for example, temporary workers or self-employed workers.
What happened in this case?
The employee is employed by the Municipality of Utrecht and is responsible for the personnel planning of the Youth Health Care. At one point, the Municipality determined that the personnel planning department was not performing well. The employee then mentioned that there were problems in her department and reported sick. After reporting sick, the Municipality informs the employee that she will be removed from her position, after which the Municipality informed the employee that a ‘’serious breach of trust’’ had occurred. The Municipality then informs the employee that a request for termination will be submitted.
Judgment of the subdistrict court
The Municipality only forwarded at various times vacancies to the employee as part of the reassignment obligation. The subdistrict court determines that the Municipality has not fulfilled its obligation to reassign. Simply informing about vacancies is not enough. However, the subdistrict court gives the Municipality the opportunity to examine together with the employee whether possibilities for reassignment are available.
Judgment of the Court of Appeals
Contrary to the subdistrict court, the Court of Appeals ruled that the failure to meet the reassignment obligation can’t be fixed in the procedure for termination before the subdistrict court. Therefore, the employer must have already complied with the reassignment obligation before the subdistrict court decides on the termination request. This is, in fact, the moment at which it is determined whether all requirements have been met. After all, the reassignment obligation is one of the two requirements for being able to grant the termination. If, at the time the subdistrict court has to take a decision on the termination, the reassignment requirement has not yet been met, the request for termination should therefore be rejected.