A Guide to Suspensions in the Netherlands

Suspending an employee under Dutch employment law should be carefully considered from a legal standpoint. While sometimes inevitable, both employers and employees should be well aware of the implications and effects of a suspension. Here is your guide to employment suspensions in the Netherlands.

How is employment suspension in the Netherlands defined?

In Dutch law, a suspension is a temporary measure where an employee is not permitted to work.

Suspension vs. non-action

One area that gets confused easily is the meaning of ‘suspension’ and ‘non-action.’ While both refer to situations where workers are prevented from performing work, they are not identical. Suspension is more likely to be used for an employee due to fault or misconduct. Non-action is a situation where no blame can be attached to the employee. Regardless of this difference, in practice, the courts will interpret the terms interchangeably, and both have an identical impact under employment law.

Why Would Someone Be Suspended?

Suspensions can be enforced for many reasons but typically fit within two categories.

One is an ‘order’ measure. An order measure is used to restore calm after a workplace conflict or to allow an investigation into employee conduct to continue unhindered. It is typically used on staff whose presence at work would, for example, interfere with operations or lead to workplace tension.

The other is a sanction measure. Here, the suspension is used as a disciplinary reaction to misconduct.

Employer Responsibilities

In either instance, employers must report the suspension and the grounds for it immediately. Employers have a statutory duty to be “good employers” when suspending employees. This well-established case law rule binds companies to deal with suspensions responsibly and fairly.

They are supposed to examine the situation thoroughly, considering the interests of all involved, and put their findings in writing. They also have to explain why the suspension, as opposed to a less severe measure such as a warning, is called for and estimate how long the suspension is expected to continue.

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Wages: A brief word

The employee is to be kept on pay unless otherwise ordered by a court, and the employer must fulfill rigorous legal requirements before the suspension. Collective agreements, in certain instances, make provision for non-payment of wages, but otherwise, wages are normally payable on suspension except in exceptional circumstances—if, for example, the suspension is an employee’s fault (e.g., being arrested).

Employee rights

Employees are entitled to be immediately informed of the reason for their suspension. An employer who fails to provide an adequate reason/s for suspension may find themselves in hot water, legally. By being given reasons, you are in a position to understand and defend yourself adequately against such accusations.

If you consider the suspension unfair or excessive, you can appeal the decision through the court’s summary proceedings procedure. The court considers all the circumstances of the suspension, including the seriousness of the employee’s act, their position in the company, and the length of employment.

Duration of Suspension

Though no limit is imposed on the duration of any suspension, delays can render suspensions unreasonable, as a court ruled in a five-month suspension that was held to be excessive. In this instance, the employer was ordered to rescind it.

Employees left with no resolution for an extended duration might have grounds for court intervention.

Reinstatement?

A worker can enforce reinstatement through the court’s summary proceedings. In these proceedings, the judges apply a two-stage test: first, whether there was a serious interest on the employer’s part that justified the suspension, and second, whether reinstatement will result in an impossible situation in the workplace. Judges granting interim relief are generally inclined to order reinstatement unless it will result in an obviously unworkable situation.

Conclusion

Suspensions in the Netherlands are a serious issue. It has legal consequences for both employers and employees. For employers, failure to follow due process in an unjustified suspension may amount to an employment dispute and claims for damages. For employees, being aware of your rights during suspension will safeguard your interests and ensure fairness. Parties are advised to seek professional legal advice on suspension. Understanding your legal rights will allow you to handle the matter strategically. Contact LVH Solicitors for more information.