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Absence from work due to (pre-trial) detention is not in itself a valid reason for summary dismissal — not even in the event of repetition. However, the employer can terminate the employment contract due to a disrupted working relationship (ground g) if trust has understandably been lost. In that case, a transition payment is usually due.
An employer needs reasonable grounds for dismissal, and often must first attempt reassignment (see our blog on grounds for dismissal). In this case, an employee was in detention for the third time. Summary dismissal was unsuccessful, but the subdistrict court judge did agree to another ground for dismissal.
The case: third time in custody
A crane operator (ECLI:NL:RBROT:2021:4836) had already been absent twice due to detention. The employer gave him a final warning: unauthorized absence or unacceptable behavior would result in dismissal. In January 2021, he failed to appear again; it was not until about ten days later that the employer heard the reason — detention once again. The employer proceeded to summarily dismiss him.
No valid summary dismissal
The subdistrict court ruled that the summary dismissal did not stand. It is an ultimate remedy in which all circumstances are taken into account. Previous case law shows that absence from work due to a (final) criminal conviction is not in itself grounds for summary dismissal — and this also applies in the case of pre-trial detention. Even the repeated absence, the late notification, and negative telephone remarks did not constitute such exceptional circumstances that a deviation from the general rule was required.
Dissolution on the g-ground, however
The employer subsequently requested the dissolution of the employment contract on the grounds of e (culpable conduct) and g (disrupted employment relationship). The e-ground failed: it was insufficiently clear to what extent the employee, who was “merely” in detention, could be blamed. The g-ground did succeed: it was understandable that the employer no longer had confidence, he could not be expected to await the criminal trial, and restoration of the relationship was no longer possible.
The judge dissolved the employment contract on the grounds of serious misconduct. The employer was required to pay a transition payment of over 12,000 euros; no equitable compensation was awarded because the employer did not act with serious culpability.
Frequently Asked Questions
Am I allowed to summarily dismiss an employee if he is in detention?
In principle, no. Absenteeism due to (pre-trial) detention or a conviction is not in itself a compelling reason for summary dismissal, not even in the case of repetition.
Can I get rid of the employee after all?
Often, this is done via dissolution on the grounds of serious misconduct, if the employment relationship is permanently and seriously disrupted and reinstatement is not possible. In that case, a transition payment is usually due.
Do I have to await the criminal case?
Not necessarily. The judge found that the employer could not be expected to await the outcome of the criminal case if trust had already been irreparably damaged.
Legal advice on a difficult dismissal case
Summary dismissal rarely holds up; another route is often wiser. The employment lawyers at MKB Juristen choose the right grounds with you. View our expertise in employment law or contact us.
