Grounds for dismissal due to refusal to work cannot be cumulated

Under the WAB, the cumulative ground (ground i) cannot be combined with the ground for dismissal of refusal to work due to conscientious objection (ground f). If you, as an employer, wish to dismiss an employee on the grounds f, you must fully comply with all the conditions of that ground. You cannot “supplement” an incomplete f-file with other, unsubstantiated grounds for dismissal via the grounds i. In this article, we explain why this is the case, what it means for your dismissal file, and how to keep your file in order.

What is the cumulative ground (i-ground)?

The i-ground is a ground for dismissal that was added to dismissal law with the Labour Market in Balance Act (WAB, in effect since January 1, 2020). This ground is set out in Article 7:669 paragraph 3 sub i of the Dutch Civil Code and is also known as the cumulative ground , because it makes it possible to combine various incomplete grounds for dismissal into one complete ground for dismissal.

Before the WAB, an employer had to fully comply with the strict requirements of a single ground for dismissal. If a case file was just not strong enough on several points, the employment contract remained in effect. With the cumulative ground, a judge can combine two or more unsubstantiated grounds and proceed to dissolution on that basis nonetheless.

Consider, for example, a situation involving a strained employment relationship where there is also a case of poor performance, while neither ground is fully substantiated on its own. In the past, the judge would uphold the employment contract. Thanks to the i-ground, the judge can combine the grounds and still grant the dismissal. However, there is a price to pay for this: when granting the dismissal on the cumulative ground, the judge may award the employee additional compensation of up to half of the transition payment, on top of the usual compensation.

Please note: the i-ground is not a “catch-all” category. Case law shows that a judge wants to see that at least two separate grounds are each already well on their way to being fully substantiated. You must therefore explain for each ground why it contributes to the dismissal; as a rule, a single nearly fully substantiated ground with some loose allegations is insufficient.

Which grounds for dismissal may be combined?

The cumulative ground is intended for grounds relating to the employee as a person or to the employment relationship. In practice, this concerns a combination of two or more of the following grounds:

• Ground c – frequent absenteeism with unacceptable consequences;
• Ground d – employee dysfunction;
• e-ground – culpable act or omission by the employee;
• g-ground – a disrupted employment relationship;
• h-ground – other circumstances that make continuation of employment unreasonable.

A well-substantiated file remains essential in this regard. Read, for example, why a judge rejected dismissal when a dysfunctional employee had not been given a clearly defined improvement plan.

Which grounds fall outside the cumulative grounds?

The i-ground explicitly does not to all grounds for dismissal. The following fall outside the scope of the cumulative ground:

• the A-ground – dismissal for business economic reasons (for example, in the event of a reorganization);
• the b-ground – dismissal due to long-term incapacity for work;
• the f-ground – refusal to work due to a serious conscientious objection.

These grounds have their own specific assessment framework and cannot be added to a cumulation as “half a ground”.

What is ground f (refusal to work due to conscientious objection)?

Ground f gives the employer the option to terminate the employment contract when the employee refuses to perform the agreed work due to a serious conscientious objection, while the work cannot be performed in an adapted form.

Strict conditions apply to this land. In general, the following applies:

• the employee actually refuses to perform the work;
• that refusal is based on a serious conscientious objection ;
• it is not possible to have the work performed in a modified form;
• the employer can sufficiently substantiate the refusal and the consequences thereof.

A classic example is an employee who refuses to process certain products on the grounds of their religious beliefs, such as a printer who does not want to print offensive publications. If the employer can reasonably adapt the work, a dismissal on the grounds of f will not stand.

Please note: refusal to work is not always grounds for an F-class

Not every form of “unwillingness to work” falls under ground f. Keep in mind that refusal to work does not automatically lead to dismissal in any case when:

• it concerns overtime that the employee may refuse;
• the refusal is the result of outstanding wages;
• it concerns an on-call contract or zero-hours contract where the employee may refuse under certain conditions.

If it is not a matter of conscientious objection but of persistent refusal without good reason, then ground e (culpable conduct) or ground g (disrupted employment relationship) is more appropriate. The correct legal classification determines which route you can take.

Why can the i-ground not be combined with the f-ground?

The rationale behind the exclusion is that ground f does not lend itself to a “partial” assessment. A conscientious objection is by its nature an all-or-nothing matter: either the work can be performed in an adapted form, or it is not possible.

Consequently, ground f cannot be “partially substantiated”. There is no intermediate form in which ground f carries half the weight and is added together with another unsubstantiated ground to arrive at a substantiated dismissal. For this reason, ground f, like grounds a and b, is excluded from the cumulative grounds.

The practical consequence for you as an employer: if you wish to dismiss an employee for refusal to work on the grounds of the f-file, you must fully comply with all the conditions of that ground. You cannot repair a barely complete f-file by, for example, invoking a strained employment relationship.

Which dismissal procedure is appropriate for refusal to work?

Because the f-ground has a narrow and strict assessment framework, “refusal to work” often falls under a different ground in practice. It is advisable to determine in advance which route best suits your situation:

1. Genuine conscientious objection? Then the f-ground comes into play, but only independently and fully substantiated. Cumulation is not an option here.
2. Culpable refusal without good reason? Then the e-ground (culpable conduct) is the obvious choice, possibly following a wage freeze and a written warning. In cases of seriously culpable conduct, summary dismissal may even be an option.
3. Breach of trust due to the refusal? In that case, ground g (disrupted employment relationship) may apply. Grounds e and g can, however, be combined via ground i.
4. Do you desire a quick and certain conclusion? Then an amicable settlement via a settlement agreement often wiser than proceedings before the court.

Whichever route you choose, always document warnings, conversations, and your assessment regarding modified work in writing. This documentation is the difference between an approval and a rejection.

What does this mean for your dismissal file?

This rule has significant implications for SME practice. Therefore, please take the following into account:

1. Classify the situation carefully. Is it truly a matter of conscientious objection (ground f), or rather of blameworthy conduct or a strained relationship? That choice determines whether the cumulative ground is available at all.
2. Build a complete dossier. With ground f, every condition point counts; you can no longer close a gap in the substantiation with ground i.
3. Investigate modified work. Document whether and why the work cannot be performed in a modified form.
4. Consider an amicable route. Often, a settlement agreement is faster and more certain than going to court.

An incorrect choice of grounds or an incomplete file can lead to the judge rejecting the request for dissolution or awarding higher compensation. Careful preparation prevents unnecessary costs and delays.

Frequently asked questions about the i-ground and refusal to work

Can I dismiss an employee for refusal to work using a combination of grounds for dismissal?

Not via ground f. Ground f (refusal to work due to conscientious objection) is excluded from the cumulative ground and must be fully substantiated independently. If it actually concerns blameworthy conduct or a strained relationship, grounds e and g may possibly be combined via ground i.

Which grounds for dismissal can be accumulated?

In principle, a combination of grounds c, d, e, g, and h is possible. This concerns grounds relating to the person of the employee or the employment relationship, such as poor performance, culpable conduct, and a disrupted employment relationship.

Why is the f-ground excluded from the cumulative ground?

Because a serious conscientious objection cannot be assessed “partially”. The work can be performed in an adapted form, or not. There is no intermediate form that can be taken into account in a cumulative assessment, meaning that the f-ground must be assessed independently.

Does the cumulative ground also apply to dismissal for business economic reasons?

No. Ground a (dismissal for economic reasons) and ground b (long-term disability), just like ground f, are excluded from the cumulative grounds and have their own assessment framework.

Does dismissal on the i-ground cost more than a regular dismissal?

That is possible. If the judge upholds the dismissal on the grounds of cumulative damages, he may award the employee additional compensation of up to half of the transition payment, in addition to the usual compensation. Cumulative damages are therefore not a free safety net for a weak case file.

What happens if my dismissal file is not quite complete?

With an excluded ground such as ground f, you cannot supplement an incomplete file with other grounds. The judge will then likely reject the request. With grounds that do fall under the cumulative ground, there is more scope, although the judge may award additional compensation.

Is refusal to work grounds for summary dismissal?

Sometimes. Persistent, unjustified refusal to work can constitute urgent grounds for summary dismissal, but this is a severe measure with strict requirements. Often, a wage freeze, a written warning, or a request for dissolution on grounds e or g is more sensible. Have the situation legally assessed before proceeding with summary dismissal.

Need help with a dismissal due to refusal to work?

Dismissal law under the WAB is and remains complex, and choosing the wrong grounds can cost you dearly. Our specialists are happy to assist you in selecting the correct grounds for dismissal and building a solid case file.

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