Reassigning an employee following a reorganization in the Netherlands requires more than simply forwarding job openings. An employer must actively investigate which positions might be suitable and provide guidance to the employee throughout the process. If the employer fails to do so adequately, the termination may be invalidated. This is evident from a recent ruling by the Midden-Nederland District Court.
When Can Dismissal Occur?
For a dismissal based on business reasons, there must be a structural reduction in jobs, for example, due to the termination of the business or business measures necessary for efficient operations. Where necessary, the employer must also apply the principle of proportional representation. Furthermore, the employer must investigate whether the employee can be reassigned within a reasonable period of time. It was precisely this last step that went wrong in this case.
Start with the Employee
The efforts expected of the employer depend on the specific situation. An employer is therefore well advised to identify the employee’s options and preferences early in the redeployment process. For example, in the redundancy notice, the employer can direct the employee to a job listings page or a job overview and ask them to indicate in advance which positions might be of interest. Those job openings can then be discussed during the redundancy or redeployment meeting.
During that meeting, the employer can further explore which job duties align with the employee’s experience and capabilities. Is the employee open to a different position or additional training? Is the employee willing to accept a pay cut? And, in the case of an international corporation, is the employee willing to relocate abroad for a suitable position?
By discussing and documenting this early on, the employer can conduct a more targeted search. However, the employer should not simply limit itself to the preferences expressed by the employee. Other potentially suitable positions also deserve consideration.
Simply Forwarding Job Openings Is Not Enough
In this case, the employee had indicated that he was open to job openings abroad. The employer initially disregarded this option, however, because, according to the employer, there was no obligation to reassign employees to positions outside the Netherlands. According to the subdistrict court, this was incorrect.
After the UWV1 rejected the request for dismissal, the employer broadened its approach. The employee then regularly received lists of current job openings both in the Netherlands and abroad. If he expressed interest, HR would request information from the hiring manager.
The subdistrict court also found this to be insufficient.
An employer is expected to adopt a coaching and proactive approach. The employer must familiarize itself with the employee’s knowledge, experience, and interests and actively explore which positions might be suitable.
The employer must also investigate whether any obstacles can be removed. For example, a position was initially rejected because it was three pay grades higher and the employee did not meet the educational requirements. According to the labor court judge, the employer should nevertheless have further investigated whether that position was suitable, given the employee’s experience and excellent performance. A difference in pay grade or a resume that doesn’t fully match the requirements does not necessarily mean the end of the investigation. Training, an interview, or an assessment may offer a solution.
Look Broadly and Document
Is the employer part of a corporate group? If so, the employer must also investigate whether suitable positions are available within other group companies. Positions at group companies abroad may also be relevant.
In addition, maintaining a proper record is important. The employer claimed to have reviewed job openings weekly even before the UWV decision, but was unable to sufficiently substantiate those efforts with documentation.
Takeaway
Simply forwarding a list of job openings is not enough. Start early, discuss the employee’s options, explore less-obvious positions as well, and document these efforts. Even if the reorganization is necessary, an inadequate redeployment process can still block the termination.
Footnote
1. The Uitvoeringsinstituut Werknemersverzekeringen (UWV) is the Dutch Employee Insurance Agency.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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