Since the introduction of the Wet arbeidsmarkt in balans (Balanced Labour Market Act), the (i) ground has been added to the previously introduced termination grounds (a) to (h). The (i) ground was intended to make it easier for courts to issue customised rulings. It means that such a combination of two or more grounds must be involved that an employer cannot reasonably be required to allow an employment contract to continue. If the (i) ground is allowed, the employee is entitled to a maximum of 1.5 times the transition payment. That is still a significant price tag in an inadequately documented termination file, particularly when compared with the old neutral subdistrict court formula. Employers were hoping for a relaxation, which the trade unions were fearing. Neither was justified, however, as 18 published cases have shown. So far only three termination requests have been allowed on the (i) ground.

But those three successful terminations are of very recent dates, so judges may have overcome their aversion to the new rules. Be that as it may, the (i) ground has given rise to hardly any relaxation of dismissal law. The courts are still strictly enforcing the “closed” system of dismissal grounds, as the legislature has urged them to do.

The purposes for which the (i) ground may be used are indeed limited. It may not be used for the (a) and (b) grounds, because those grounds are assessed by the UWV (Employee Insurance Agent).

The (c) ground (frequent absenteeism due to sickness) is in fact redundant legislation. That ground is in any event of no use to large employers, because they are by definition unable to demonstrate “unacceptable consequences for the operations”. Only small employers may be able to combine the (c) ground with the (g) ground (a breakdown in the employment relationship) or the (d) ground (poor performance).

The (e) ground (serious culpability) cannot easily be combined in practice because an incomplete (e) ground is likely to constitute a full-fledged (g) ground. The (d) ground is then no longer needed for the combination to create the (i) ground. In a recent ruling (ECLI:NL:RBMNE:2020:3800) the Court of Midden-Nederland found, however, that no full-fledged (e) or (g) ground existed, but that the breakdown in the employment relationship was of an equivalent nature, due to the tensions that had arisen in a horizontal sense (i.e. the employee had a conflict not only with his employer but also with his colleagues). The court combined the (e) and (g) grounds and therefore terminated the employment contract on the (i) ground.

The same all-or-nothing rule applies to the (f) ground (serious conscientious objections): an employee cannot have mild conscientious objections. The (f) ground is furthermore rare: like the (c) ground, it has never been allowed in published case law.

The (h) ground is also unlikely to be used as a combination ground, because the legislature has provided that, by its nature, it requires a restrictive interpretation. The (h) ground is a safety net provision that, like the (i) ground, is not intended to repair an insufficiently substantiated termination. Examples of the (h) ground given in legislative history are detention and illegality of an employee, and failure of the employer to obtain a work permit. Those are not everyday circumstances. It is, however, apparent from case law that the (h) ground is often successfully relied on in a “difference of opinion” with a managing director. A “difference of opinion” may present an employer with a breakdown in the working relationship with an individual manager or director. In the event of doubt, this ground could be combined with the (g) ground. A (d) ground is difficult in the case of managing directors, because it is not easy to draw up an improvement plan at that level.

The other two cases in which the combination ground was allowed are similar in terms of case history. Both cases involved a board member, a failed mediation process and a combination of the (d) ground with the (g) ground (ECLI:NL:RBMNE:2020:2705 and ECLI:NL:RBMNE:2020:3327). That is indeed the most obvious combination.

In addition to that most obvious combination of the (d) and the (g) grounds, the (i) ground can also be combined with the (c) ground in the case of small employers. The (h) ground could be useful in the case of a managing director. All things considered, the combination possibilities are limited. The recent judgment of the Court of Midden-Nederland of 10 September 2020 (ECLI:NL:RBMNE:2020:3800) demonstrates that also the (e) and (g) grounds may be combined in the case of horizontal tensions (i.e. between the employees and his or her colleagues) in the workplace.

Be that as it may, only 3 of the 18 legal actions have been successful. That may be reason in the event of doubt to forget about the (i) ground, particularly if an employer is convinced that the case is well documented: if an employer uses an (i) ground, its alternative ground must also be virtually full-fledged. If an employer knows beforehand that its alternative ground is weak, the combination ground for termination is likely to detract from the “strong” ground.

For further information or advice on this subject, please contact Michiel van Haelst (+31-6-55394487).

This article was published in the Newsletter Vestius of October 2020

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