An employer can suspend an employee if there are sufficient grounds for it. Usually, this is a prelude to the dismissal of the employee. During a suspension, an employer can for instance investigate whether there are grounds for instant dismissal. Alternatively, an employer can suspend an employee and submit a request to terminate the employment agreement at the Court.
1 In Dutch employment practice, two different terms (“schorsing” and “non actief stelling”) are used. What is the difference between these?
Legally, these are exactly the same and they can be used interchangeably. The meaning is the same: the employee is not allowed to perform his duties during the suspension.
2 When can an employer suspend an employee?
In the employment agreement, there can be a provision as to suspension. If the employment agreement (or in the CLA) contains nothing about suspension, an employer needs substantial grounds to suspend the employee. Examples of such substantial grounds are a suspicion of theft or fraud, or other serious misconduct.
3 Should the employer continue to pay the employee’s salary during the suspension?
In principle, yes: during the suspension there is an obligation on behalf of the employee to continue to pay the salary. However, additional allowances that are directly connected to the performance of duties (like overtime surcharges) do not have to be paid. In order to end the salary payments, the employer should terminate the employment agreement by either instant dismissal, Court proceedings or with a settlement agreement. This has been consistent case law by the Dutch Supreme Court for decades.
However in 2019, 2 Court decisions (one of which by the Court of Appeals in The Hague) established that during a suspension which leads to a dismissal, no salary needs to be paid. In these cases, gross misconduct on behalf of the employee was the decisive factor. The future will learn whether these decisions will be sustained by the Dutch Supreme Court.
4 What are the possibilities of the employee in the event of an unjustified suspension?
An employee that doesn’t accept a suspension, can first send a letter to the employer protesting the decision. In the event the employer nevertheless continues the suspension, the employee can start summary proceedings at the Court and request reinstatement, so he can resume his work.
5 What is the difference between “suspension” and “exemption from work”?
Legally, there is no difference. Both a suspension and an “exemption from work” or to be “relieved of duties” are not explicitly addressed in Dutch employment law. In both situations, the employer determines that the employee does not have to perform duties. The difference is mostly semantic. A suspension sounds negative. Being “relieved of duties” however sounds better. In a settlement agreement, being relieved of duties is often sold by the employer as concession to the employee.