An employment agreement can, in principle, only be terminated if the following conditions have been met:
- There is one of the reasonable grounds for dismissal provided for by law;
- Redeployment of the employee to another suitable position within the company is not possible.
If the employer has not met both of these conditions, the employment contract can cannot be terminated without the employee’s consent.
In this article, I will focus on the second condition: the redeployment condition. The redeployment obligation means that the employer must make an effort to place the employee in another position within the company. Because it is not clear from the law what an employer must do in the context of the redeployment obligation, I clarify this in this article.
An active approach
An employer is expected to take an active attitude. The employer must really make an effort to try to redeploy the employee. Pointing out open vacancies within the company to the employee is insufficient to meet the redeployment obligation.
If there is a vacancy open for a suitable position, the employer must act proactively. This means that the employer must invite the employee for a job interview or offer the position straight away. An employer must be able to provide justification if it rejects the employee for a position suitable for the employee.
An employer is also expected to adapt its approach to the employee. This may mean, that the employer has personal discussions with the employee and removes possible barriers.
In certain cases, the employer may also be expected to offer training to make a position suitable. Again, the employer is expected to take an active and leading role. The employer must enrol the employee in courses or training. Merely offering training opportunities is insufficient to meet the redeployment obligation.
If the employer is part of an international group, the employer must look into the possibility of redeploying the employee to another entity of the company. The employer will need to engage in conversation to discuss the possibility of redeployment to another global location.
The employer must try to place the employee in a suitable position. Case law shows us that a position is considered suitable if it matches knowledge, experience and education.
Please note that if an employer has made sufficient efforts to redeploy the employee, it has fulfilled its obligation in this regard. If there is reasonable ground for dismissal, the employee’s refusal of a suitable position may therefore result in the employer being able to successfully terminate the employment contract.
As the above shows, much is expected of an employer under the redeployment requirement. What specifically can be expected from an employer in fulfilling the redeployment obligation will have to be assessed on a case-by-case basis.
Please contact us if you have any questions about the redeployment condition. We would be happy to advise you about what can be expected from your employer and whether you can reject a suitable role.