3 times difficulties with dismissal after a criminal conviction

A criminal conviction of an employee — even for something in their private life — is not automatically a valid ground for dismissal. The judge weighs all circumstances: the nature of the position, the link to the work, the risk of recidivism, and the employer's duty of care. Sometimes the dismissal stands, sometimes it does not. Therefore, always seek legal advice first.

Suppose an employee is convicted of a crime committed in their private life. Is that sufficient grounds to terminate the employment contract or even dismiss them summarily? There is no straightforward answer. Three cases demonstrate that it is possible, but also highlight the importance of careful consideration.

Case 1: Harassment healthcare provider rightly dismissed

A care provider with a training employment contract at care organization Cordaan (providing care for, among others, elderly people with dementia) was sentenced to a suspended prison sentence for, among other things, attempted extortion and stalking. Although the conduct took place in the private sphere, the employer filed a request for termination, and the Amsterdam Court of Appeal (ECLI:NL:GHAMS:2021:339) ruled that the conduct was seriously culpable.

The Court took into account that the employee had not been open about her actions, that her behavior was incompatible with her work (she worked with vulnerable, impressionable people), and that there was a risk of recurrence. The dismissal was upheld, without a transition payment or equitable compensation.

Case 2: Hospital employee allowed to stay after drug offenses

A hospital employee was sentenced to five years in prison for serious drug offenses. Nevertheless, the judge (ECLI:NL:RBMAA:2011:BP5184) rejected the request for dissolution of the employment contract. It spoke in his favor that he had always behaved as a reliable and highly valued employee during his employment, that his manager was happy to see him return, that he did not have access to the laboratory or the pharmacy, and that the risk of recidivism was low according to the probation service.

Case 3: Security guard wrongfully dismissed — employer acted too soon

A security guard was summarily dismissed following a conviction for assault and threats. Later, the Court of Appeal in The Hague acquitted him. The judge ruled that the employer had acted prematurely (ECLI:NL:GHSHE:2006:AW4121): he should have waited at least until the criminal judgment was final.

What do employers learn from this?

• A conviction in itself is not an automatic ground for dismissal; the link to the position and the risk of recidivism are decisive.
• Working with vulnerable target groups or a clear link between the offense and the position makes dismissal more justifiable.
• Do not act too soon: a conviction that is not yet final can undermine a dismissal.

Frequently Asked Questions

Am I allowed to dismiss an employee after a criminal conviction?

Not without further ado. The judge weighs all circumstances, including the nature of the position, the link to the work, and the risk of recurrence. Sometimes dismissal stands, sometimes it does not.

Does an offense committed in the private sphere count?

Yes, but only if it sufficiently affects the position or trust, for example when working with vulnerable people. Otherwise, dismissal is difficult to justify.

Am I allowed to dismiss summarily before the judgment is final?

That is risky. Dismissal too early can be overturned, especially if the employee is later acquitted. In principle, wait for a final judgment and seek advice.

Dismissal after a conviction? Seek advice first

Dismissal law is complex, and a misstep can quickly result in substantial compensation. The employment lawyers at MKB Juristen assess whether a dismissal holds up in your situation. View our expertise in employment law or contact us.