MKB Juristen drafts custom legal documents
It is best not to cobble together or copy important contracts, terms and conditions, and other legal documents yourself. We help entrepreneurs on a budget with customized legal solutions, clear costs upfront, and practical explanations.
- Custom contracts, terms and conditions, and legal documents
- Budget-friendly and clear about the costs upfront
- Request a free consultation or a no-obligation quote
For dismissal due to culpable conduct (ground e), dismissal need not be the last resort: even if a less severe measure was possible, the employer may terminate the employment contract. However, it is required that it was clear to the employee in advance what was and was not accepted, and that the employer sets customary, non-excessive requirements in this regard. This was the ruling of the Supreme Court.
For dismissal, the employer must have reasonable grounds, such as a disrupted employment relationship (ground g) or culpable conduct (ground e). Read more about the various grounds for dismissal. This concerns a ruling by the Supreme Court regarding ground e (ECLI:NL:HR:2021:781).
What is the e-ground?
Ground e is dismissal due to culpable conduct or omission. Article 7:669 paragraph 3 sub e of the Dutch Civil Code refers to “culpable conduct or omission by the employee, such that the employer cannot reasonably be expected to allow the employment contract to continue.” It is a matter of fact: among other things, it counts whether it was clear to the employee that the conduct would not be tolerated. Moreover, more careful conduct may be expected from an employee in a role model function.
Should dismissal be the last resort?
The new question was: can the e-ground also be used when a less drastic measure would suffice? In the case, a person had worked for a foundation since 2010, eventually as general director. An audit revealed that the director, together with his brother, owned a commercial property that was leased to the foundation — a personal interest. Under his management, that lease agreement was even expanded. Due to this uncommunicated conflict of interest, in which the interests of the foundation were not prioritized, dismissal on the e-ground followed.
The employee argued that lighter disciplinary measures were possible. The Supreme Court ruled that this does not matter: the legislative history shows that it suffices that the employer cannot reasonably be expected to allow the employment contract to continue. Ground e therefore need not be a last resort. However, it must have been clear beforehand what the employer considers permissible, and those requirements must be customary and not excessive.
Frequently Asked Questions
Do I have to issue a warning first before dismissing on the grounds of serious misconduct?
Not necessarily. The e-ground does not have to be a last resort. However, it must have been clear to the employee beforehand that the behavior was not accepted.
What is culpable conduct?
Unacceptable conduct or omission attributable to the employee, such that the employer cannot reasonably be expected to allow the employment contract to continue — such as a concealed conflict of interest.
Do stricter requirements apply to a role model function?
Yes. More careful behavior may be expected from an employee in a role model position, such as a director, which is taken into account in the assessment of the e-ground.
Seek advice before a dismissal
Dismissal law is complex, and an employee can challenge the dismissal. The employment lawyers at MKB Juristen advise you in advance and draft the dismissal letter. View our expertise in employment law or contact us.
