Re-employment in case of working online?

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Date:
14 Sep 2021

Is an employer obliged to re-employ an employee who can perform work online from the Netherlands for a company established outside of the Netherlands?

By:
Aimëe Peterse

This question was recently submitted to the Amsterdam District Court. An employee has been working for the employer, a Dutch company, since 3 April 2018. This employer is part of an international concern that is engaged in student recruitment for distance education.

At the end of May 2020, the employer decided to cease all activities in the Netherlands due to economical reasons. Apart from the employee's employment contract, all other 18 employment contracts are terminated by means of a settlement agreement due to economic circumstances. After the office in the Netherlands is closed on 30 June 2020, the employee (temporarily) performs her work online for a Czech sister company of the employer, as she was not willing to  sign the settlement agreement and therefore remained in service.

On 10 July 2020, the employer requested permission from the Dutch governmental body (‘UWV’) to terminate the employee's employment contract. The UWV refused, because it was not clear to the UWV why the employee could not continue to work for the Czech sister company online. In other words: the UWV decided that the employee could be re-employed on behalf of the sister company.

The employer then requested the Subdistrict Court to terminate the employee's employment contract. The employee from her side  argued that she was able to continue her work, which in her opinion comprised her entire former (Dutch) work package, online for the Czech entity.

The Court ruled that the employer indeed had valid reasons for closing down the Dutch branch. The company was structurally loss-making. The key question in this case however remained whether the employer had fulfilled the obligation to redeploy. The judge was of the opinion that it had. The judge appreciated  that the employee had worked online for the Czech entity for a certain period of time, but the employer had properly substantiated that this was a temporary (special) situation because the employee had not signed the termination agreement. Her work during this period consisted purely of finalizing existing leads, originally coming from the Netherlands. As the employer in addition had substantiated why the physical presence of the employee in the Czech Republic was essential for her work, the judge was of the opinion that the employer could not be asked that the employee would continue to carry out her work for the company in the Czech Republic structurally online from the Netherlands.

What does this mean for you as an employer?

In the event that an employee is dismissed, as an employer you have the obligation to investigate whether another suitable position is available within the company within a reasonable period of time[1]. If the employer is part of an (international) group of companies, or if a company has several branches, it is also necessary to examine whether the employee can be redeployed there.

The corona pandemic has shown that many functions can be performed from home. Nevertheless, this Court ruling demonstrates that if work temporarily can be carried out remotely (online) for a foreign sister entity, this does not automatically mean that there is a suitable position and therefore a duty to offer this position. If you, as an employer, can demonstrate that it is essential for your employee to physically come to the workplace, an employee does not have to be reassigned to a position in which the work is purely remote and performed from another country. We expect that a similar conclusion can be drawn for cases where work is solely carried out in and from the Netherlands.

[1] The obligation to redeploy does not apply in cases of serious culpability of an employee.