The redeployment obligation which the employer must comply with in the context of an employee’s termination is a best-effort obligation, not an obligation to achieve a certain result. But how far do the efforts need to go? How active does the employer need to be? The answer is: extremely active! That is underlined by a recent ruling by the Tilburg Sub-District Court.
This case concerned an employee who had himself suggested an alternative suitable position within the framework of the employer’s obligation to redeploy him, but that suggestion was quite simply rejected by the employer without further substantiation. According to the Sub-District Court, the employer had failed to enable the employee to take part in an assessment. The employer had also failed to demonstrate that the job suggested by the employee was unsuitable for the employee in terms of training, experience and skills, and that the employer could not be required to enable the employee to prepare for the job with the aid of training. That failure turned out expensive for the employer: its request for termination was rejected.
- Actively assist the employee in finding another suitable position
- Enter into consultation with the employee about possible redeployment (orally or in writing)
- Enable the employee to take tests within the application process for the potential new position
- Remove any obstacles that may exist regarding the potential new position (for example, by offering specific training opportunities, or by looking for specific solutions for aspects that do not directly “match” with the new position)
- Merely send the employee a list of vacancies or refer him/her to the internal vacancies database
- Investigate the opportunities for redeployment within just one day, despite the company being a member of a large (international) group of companies
- State that redeployment is not possible or reasonable, without any further substantiation
Important: In the Redundancy Scheme, a notional situation has been created for the payroll relationship, implying that the payroll employee is deemed to be employed by the client. The redeployment obligation therefore falls on the client. This is only different if the agreement between the payroll employer and the client is terminated at the initiative of the payroll employer because the client fails to meet its financial obligations for a period of three months.
If you have any questions please contact Stéphanie Spoelder.
Tags: redeployment, Redundancy Scheme, suitable position, termination