It appears in every settlement agreement upon dismissal: ‘the employee cannot be redeployed to another suitable position‘ or ‘a redeployment investigation has yielded no results‘.
The redeployment investigation is one of the conditions for a legally valid dismissal. The law states that an employer must not only have a good reason for dismissal, but must also investigate whether an employee can be redeployed to another suitable position within a reasonable period, possibly with the help of training.
In practice, however, we often see that employers skip the redeployment investigation. And that is a shame. The investigation can first of all lead to a successful redeployment of an employee. But in addition, not conducting a redeployment investigation leads to unnecessary risks for employers. A dismissal can, for example, be declared invalid afterwards if no redeployment investigation has been conducted by the employer.
This happened in a case that was heard at the Court of Appeal of ‘s-Hertogenbosch. In this case, no redeployment investigation had been conducted by the employer. The judge found that the employer could at least have been expected to inventory together with the employee which positions might be suitable. Subsequently, after the inventory, the employer should have investigated within her company and elsewhere in the group whether such positions were available or would become available within a reasonable period. Since the employer had not done this, the judge ruled that the employment contract with the relevant employee had to be restored with retroactive effect and that wages also had to be paid again from that date.
Therefore, invest some energy in the redeployment investigation. It prevents trouble afterwards.
Tips & Tricks
But how do you conduct a redeployment investigation? Below are some useful tips & tricks:
- The redeployment investigation is an obligation of effort, not an obligation of result. It is mandatory to investigate redeployment possibilities, but someone does not actually have to be redeployed to another position.
- Conduct the redeployment investigation in consultation with the employee. This is important, because a unilaterally conducted redeployment investigation is not sufficient. Inventory with the employee which positions might be suitable and discuss this at least once with each other.
- Make a report of the redeployment investigation. This way it is clear and demonstrable that the investigation has been conducted.
- Always conduct the redeployment investigation, even if there is, for example, a disrupted employment relationship. The fact that relationships are disrupted does not release an employer from conducting a redeployment investigation.
- Is there a group structure? Then the investigation must be conducted group-wide. This also applies to redeployment possibilities at foreign subsidiaries. However, for a Dutch company it is not (always) possible to enforce placement of an employee at a foreign sister company. The employer must make efforts for redeployment, for example by proposing an employee to a foreign sister company.
Do you have specific questions about the redeployment investigation? Then you can always contact us without obligation.
