The obligation to reinstate as an Achilles’ heel in reorganisations
11 October 2021 – Renzo Ter Haseborg
This short blog will explain why vacancies and applications should be handled carefully when reassigning the redundant employee.
But first: what about reassignment?
In the event of a reorganisation, an employment contract can only be terminated if (i) there is an economic reason and (ii) redeployment is not possible within a reasonable period of time.
The UWV expects the employer to have actively investigated whether the employee can be redeployed. Relocation is a joint responsibility. The possibility of redeployment of an employee is considered on the basis of (future) vacancies. It is usual for the employer to discuss possible suitable jobs with the employee during a redeployment interview and to make written agreements on these. The UWV explicitly asks for this. The employee must also be able to find out about (new) vacancies; the employer must play an active role in this. The UWV requests an overview of the company’s vacancies and of the vacancies group.
A suitable position is a position which is in line with the education, experience and capacities of an employee, or for which he/she can be suited within a reasonable period of time with the help of training. This usually involves positions that match the level of work done by the employee.
How to deal with vacancies in case of redeployment?
Although it is up to the employer to assess which employee is the most suitable to fill a vacancy, this must be done with due care – as a recent judgment of the District Court of Oost-Brabant shows.
This case concerns a redundant employee who has not been offered a potentially suitable position. When asked, the employer informed the employee, without giving any further explanation, that it did not consider him suitable for the job. In response, the employee did not apply for the job as he believed it was pointless. The employee took the position that the employer had breached its obligation to reinstate him by not inviting him to apply for the position and by drawing the conclusion that the position was unsuitable without stating any reasons in advance. The Subdistrict Court agreed with the employee. Although the employer has a certain policy freedom when it comes to filling a vacancy, it has not made sufficient efforts to redeploy the employee by passing him over without explanation.
It is advisable, in the event of redeployment, not only to inform the redundant employee of possible suitable vacancies, but also to investigate in all reasonableness whether the employee is the most suitable candidate for these. If this turns out not to be the case, the employee should be rejected for the job, stating reasons.