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If an employee is in prison, he cannot work — and in principle, 'no work, no pay' applies: the detention is at his own risk. Dismissal is not automatically possible; detention is not in itself a ground for dismissal, but prolonged absence or a strained relationship can become so under certain circumstances.
No work, no pay
An incarcerated employee does not perform work. The general rule is that the inability to work due to detention falls within his sphere of risk: in principle, you are not required to continue paying wages (Article 7:628 of the Dutch Civil Code). The employee cannot invoke the argument that it is not his fault.
Is dismissal possible?
Detention is not, in itself, a separate ground for dismissal. Nevertheless, dismissal is possible under certain circumstances: in the event of prolonged absence making continuation unreasonable, in the case of a severely disrupted employment relationship, or—in the case of a serious work-related offense—possibly even summary dismissal. Every situation is different and requires careful assessment.
Weigh the circumstances
Whether a dismissal stands depends on factors such as the duration of the detention, the nature of the offense, the consequences for your business operations, and the employee's employment status. A short period of detention carries different weight than a long one; an offense committed in the private sphere carries different weight than one that affects work.
Handle with care
If you wish to proceed with dismissal, build a solid case file and choose the right route — via the sub-district court or by mutual consent. A hasty or poorly substantiated termination can lead to continued payment of wages or reinstatement. Therefore, seek advice beforehand.
Frequently Asked Questions
Do I have to continue paying wages if my employee is incarcerated?
In principle, no: detention falls within the employee's sphere of risk, so 'no work, no pay' applies (Article 7:628 of the Dutch Civil Code).
Am I allowed to dismiss an incarcerated employee?
Not automatically. Detention is not an independent ground, but prolonged absence or a strained relationship may, under certain circumstances, justify dismissal.
Is summary dismissal possible?
Sometimes, in the case of a serious and work-related offense. This requires careful attention; assess it thoroughly.
A difficult staffing situation?
Our legal experts and lawyers assess your chances and draft a settlement agreement . View our employment lawteam or schedule a free consultation.
