Even if there is a valid reason for termination, in many cases the employer must first determine whether the employee can be reassigned before termination can take place. In the case of reassignment, the employer must look for another suitable position for the employee within the organization and—if one is available—offer it to the employee. In this blog, we explain the applicable rules and what employers and employees need to keep in mind.
When must the possibility of reassignment be explored?
In the case of various grounds for termination, an employer must determine whether reassignment is possible before the employment contract can be terminated. This applies, for example, to termination for business reasons (reorganization), poor performance, a strained working relationship, and long-term disability.
This obligation does not apply in all situations. For example, in the case of immediate termination, there is no requirement to first seek a transfer. Different rules may also apply in cases of (serious) culpable conduct.
The employer must assess whether a suitable position is available or will become available within a reasonable period of time. In principle, this period begins at the time the decision to terminate employment is made.
What is a suitable position?
A position is suitable if it aligns with the employee’s education, experience, and abilities. The position does not have to be the same as the employee’s current job. The employer must also consider positions for which the employee can be made suitable within a reasonable period of time through training.
Commuting distance can also be a factor in determining whether a job is suitable. A commute of about an hour and a half one way may still be reasonable under certain circumstances, but this depends on the specific circumstances of each case.
If the employer is part of a corporate group, the employer must search for another suitable position within all companies in the group. Depending on the circumstances, positions abroad may also be relevant.
The employer must consider not only current job openings but also positions that will become available within a reasonable timeframe. It is important to conduct the review carefully and document which options were considered and why certain positions are or are not suitable.
It is wise for employees to actively contribute ideas about potential positions. This does not mean that the employee is responsible for the entire redeployment assessment, but it can help identify suitable opportunities.
Found another suitable position?
If another suitable position becomes available, the employer must, in principle, offer it to the employee. An employee who refuses a suitable offer may thereby weaken his or her position. Depending on the circumstances, the refusal may have consequences for the termination and the right to a transition payment or unemployment benefits.
In the event of business-related circumstances (reorganization), it may happen that multiple redundant employees are eligible for the same suitable position. In that case, the selection process must, in principle, be reversed. Sometimes, the employer may also have the option to choose who gets the position. This is the case with the “musical chairs” method.
Demotion and reassignment
In principle, when reassigning an employee, an employer must consider positions at a comparable level. A slight difference in salary and responsibilities is still considered appropriate, even if the salary is lower or the responsibilities are fewer. If the difference is too great, the position cannot be considered a suitable alternative.
It also happens that an employer wants to reassign an employee to a position with significantly fewer responsibilities or a much lower salary. This may constitute a demotion. Such a change in position cannot simply be imposed unilaterally and is unlikely to be permitted—not even as a disciplinary measure.
Advice on Reassignment
Reassignment plays an important role in many termination proceedings. A thorough investigation can prevent an unjustified termination from proceeding and can help find an appropriate solution.
Our employment law attorneys advise employers and employees on job reassignment and termination. We are happy to help you identify the options, risks, and next steps, and determine an appropriate strategy.
