How far does the redeployment obligation extend at international groups?

In principle, the obligation to redeploy extends across the entire group and does not automatically stop at the national border, but it does have clear boundaries. If your company is part of an international group, you must also consider suitable positions at foreign group subsidiaries in the event of an impending dismissal – but only to the extent that the employee has made themselves available for them. This concerns an obligation of effort, not an obligation of result: you do not have to guarantee a job, but you must seriously and demonstrably investigate whether redeployment is possible. A well-documented investigation is your most important protection in this regard if the dismissal is challenged later.

What does the redeployment obligation entail?

Investigating redeployment possibilities is a statutory requirement for virtually every dismissal. Dismissal is only possible if redeployment to another suitable position within a reasonable period—with or without training—is not possible or not reasonable. This requirement follows from Article 7:669 of the Dutch Civil Code and is further elaborated in the Dismissal Regulations.

The “reasonable period” within which redeployment must be investigated is, in principle, equal to the statutory notice period applicable to the employee concerned. Within that period, you assess whether a suitable position exists or becomes available. A suitable position is one that aligns with the employee’s education, experience, and capabilities, or for which he or she can be made suitable through training within a reasonable period.

Three concepts that make the difference

• Group: an association of companies that are economically and organisationally connected to one another. The obligation to redeploy is not limited to your own company, but extends to the other parts of the group.
• Obligation of effort: you must demonstrably make an effort to investigate redeployment, but you do not have to guarantee a result (a job).
• Availability: the employee's willingness to work elsewhere or abroad. Without this availability, you do not need to consider foreign positions.

How far does the obligation to redeploy extend within an international group?

If the employer is part of a group, the investigation is not limited to the company itself. You must also consider vacancies and jobs at other parts of the group. In the case of an international group, this generally applies across national borders as well: suitable positions at foreign group entities count.

However, there is an important nuance to this. That international scope applies only insofar as the employee has made themselves available for it. If an employee indicates that they are not willing to work abroad, you do not need to include foreign positions in the redeployment assessment. The employee's willingness is therefore a pivotal factor.

No geographical boundary in the law, but in practice

The law does not establish a strict geographical limit on the obligation to redeploy an employee within a corporate group. However, this does not mean that you have to literally scour every branch worldwide. Suppose an employee of a restaurant chain in Amsterdam is threatened with dismissal; it would be unreasonable to demand that a single vacant position be searched for in hundreds of other branches worldwide. The judge therefore takes into account whether redeployment is reasonably “reasonable”.

Factors that play a role in this include:

• the travel distance to the place of residence and whether it is reasonably manageable on a daily basis;
• the international character of the original position;
• the size of the group and the degree of interconnectedness between the companies;
• the employee's willingness to work elsewhere or abroad;
• relevant economic and organizational circumstances, such as the freedom of a foreign subsidiary to pursue its own personnel policy.

What does the judiciary say?

Case law shows that the outcome depends heavily on the circumstances of the case. In cases involving employers in the aviation sector – a pre-eminently international industry – sub-district court judges ruled that the obligation to reassign employees had not been met, even though the nearest other branches were located abroad. The international nature of the work weighed heavily in this regard.

In other cases, the judge did accept a geographical restriction. When an employer had investigated whether reassignment was possible but concluded that the distance to the place of residence was so great that it could not reasonably be covered on a daily basis, that restriction was upheld. The common thread: it is not about whether there is a position somewhere in the world, but whether reassignment reasonable .

Supreme Court: obligation of best efforts, not an obligation of result

On January 18, 2019 (ECLI:NL:HR:2019:64, the so-called Shell ruling), the Supreme Court clarified that there are reasonable limits to the obligation to redeploy, even for large international employers. The case revolved around an employee of an international energy group. The key ruling: the obligation to redeploy is not an obligation of result, but an obligation of effort . Therefore, you are not required to guarantee a job. However, it must be assessed whether redeployment is possible and whether it is reasonable to redeploy the employee, whereby the employer has a certain margin of discretion.

In other words: the fact that a company is a large employer with branches all over the world does not mean that redeployment is automatically deemed possible. For example, a Dutch company cannot simply give priority to an employee to be redeployed for a vacancy at a foreign subsidiary. In doing so, the Supreme Court took into account that such priority would unduly restrict the freedom of those foreign entities to conduct their own personnel policy.

What does this mean specifically for you as an employer?

For entrepreneurs within an (international) group, an individual, careful approach to each dismissal file is crucial. The practical translation:

1. Explicitly ask the employee about their willingness to work elsewhere or abroad, and record this in writing.
2. Provide an overview of suitable vacancies within the group. If the employee makes themselves available for international reassignment, also include foreign subsidiaries.
3. Substantiate your considerations: why is a particular position suitable or not, and why is relocation to a great distance reasonable or not?
4. Document the reassignment investigation in the file. In the event of legal proceedings, you bear an extensive burden of proof.

In doing so, you need not go further than conducting a thorough investigation and, where appropriate, offering a suitable position. A well-documented effort assessment is your best protection if a dismissal is challenged later. If you are unsure about the scope in your specific situation, engage an employment law before starting the dismissal procedure.

Common mistakes in the rehoming investigation

In practice, employers stumble primarily over the substantiation, not the effort itself. Therefore, watch out for the following pitfalls:

• failing to record the employee's willingness to work elsewhere or abroad in writing , meaning you cannot prove this later;
• excluding foreign vacancies in advance without explicitly asking the employee;
• only start the redeployment investigation after the dismissal decision has actually already become final;
• Looking exclusively at one's own company and overlooking sister companies in the Netherlands

Frequently asked questions about reassignment at international corporations

Should I also consider foreign branches upon dismissal?

Yes, if your company is part of an international group, you must in principle also consider suitable positions at foreign group subsidiaries. However, this applies only to the extent that the employee has made themselves available for reassignment abroad.

Is the obligation to reassign a result-based obligation?

No. The Supreme Court has confirmed that this concerns a best-efforts obligation. You must demonstrably investigate whether redeployment is possible and reasonable, but you do not have to guarantee a suitable position.

Am I allowed to refuse rehoming due to the travel distance?

That is possible, provided it is well-substantiated. If the distance to the place of residence is so great that it cannot reasonably be covered daily, a geographical restriction may stand. However, the international nature of the original position may influence that assessment.

Within what timeframe must I investigate relocation?

The law refers to a reasonable period. In principle, this is equal to the statutory notice period applicable to the employee concerned. Within that period, you assess whether a suitable position is available or will become available.

What if the employee does not want to work abroad?

If the employee indicates that they are not available for international reassignment, you are not required to include foreign positions in the investigation. However, carefully record this statement in the file.

Does the obligation to redeploy also apply to positions at a sister company in the Netherlands?

Yes. Within a group, you look not only at your own company but also at suitable positions at other group entities in the Netherlands. The international dimension only comes into play once the employee makes themselves available for work abroad.

Who has to prove whether or not relocation was possible?

In dismissal proceedings, it is up to the employer to demonstrate that the redeployment investigation was conducted carefully and that redeployment was not possible or reasonable. A complete and documented file is therefore decisive.

Need help with a dismissal within a group of companies?

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