Since 1 January 2020, it has been possible to dismiss an employee based on a combination of circumstances (the so-called “i-ground” or cumulative ground). This allows an employee to be dismissed without any single ground for dismissal being fully established on its own. Where a court dissolves an employment contract on the i-ground, it can award the employee an additional payment of up to 50% of the transition payment.
In its dissolution request, the employer must separately and properly explain the i-ground. Subdistrict courts are not inclined to gather the reasons for the i-ground themselves and rule on that basis.
District Court Noord-Holland, 17 February 2020
On 17 February 2020, the District Court Noord-Holland rejected a dissolution request based on underperformance, culpable conduct, a disturbed working relationship, or the i-ground. The employee concerned was said to have repeatedly behaved unacceptably, allegedly sabotaging the production line on several occasions. Since the employer could not substantiate this accusation, the subdistrict court did not dissolve the contract for culpable conduct. The employee rightly argued there was no link between the production faults and his presence.
Nor did the subdistrict court dissolve the contract for underperformance, since no file existed and no performance reviews had ever taken place with the employee.
The subdistrict court ruled there was no working relationship so disturbed that the employer could not reasonably be required to continue it. According to the employer, the disturbed relationship arose from the employee’s culpable conduct and underperformance. Neither this culpable conduct nor the underperformance had been established. The subdistrict court therefore did not dissolve the contract for a disturbed working relationship either.
Nor did the subdistrict court dissolve the contract on the i-ground. The i-ground is intended for cases where continuing the employment can no longer reasonably be required of the employer, where the employer cannot base this on circumstances from a single ground for dismissal, but can substantiate it with circumstances drawn from several grounds together. The employer had failed to explain the i-ground separately, and it is not for the subdistrict court to gather the circumstances raised under the individual grounds and independently assess whether that is enough for a fully established i-ground.
For the full ruling, click here (in Dutch).
District Court Oost-Brabant, 25 February 2020
The employer (a school) sought dissolution of an employee’s contract for culpable conduct, a disturbed working relationship, other circumstances, or the i-ground. The school had received signals that the employee was behaving inappropriately. An investigation found no evidence of intimidating conduct or abuse of power. It did emerge that the school had, for years, had a culture in which staff maintained romantic relationships with each other. Although the employee’s conduct was unprofessional (especially given his role as team leader), the school itself was partly responsible, since it had never consulted staff about this culture or set any rules for it. The subdistrict court ruled the school had no reasonable ground to end the employment contract. Nor did its reliance on the i-ground help. The conduct attributed to the employee, and the disturbance in the working relationship attributable to both parties, was not such that the school could not reasonably be required to continue the employment contract.
For the full ruling, click here (in Dutch).
District Court Oost-Brabant, 5 March 2020
The subdistrict court ruled that a maths teacher had not acted culpably by, on one occasion, raising students’ grades. Breaching the grade-progression rule once does not provide sufficient grounds for dissolution due to culpable conduct, a disturbed working relationship, or the i-ground. It was relevant that the employer could not substantiate its accusations, that there was no evidence it had done anything to investigate whether the disturbed relationship could still be repaired, and that it had not separately explained the i-ground.
For the full ruling, click here (in Dutch).
District Court Midden-Nederland, 27 March 2020
The employer sought dissolution of the employment contract for underperformance, or underperformance combined with a disturbed working relationship (the i-ground). The employer had not started an improvement plan for the employee. The subdistrict court rejected the dissolution request based on underperformance, since the employer had not cited concrete examples of it, had not informed the employee of it in good time, and had given him insufficient opportunity to improve his performance.
Regarding the i-ground, the subdistrict court ruled there was insufficient evidence of an unworkable situation. It was relevant that the employer had wrongly taken the position that the employment contract had to end, and had barely explained why the i-ground would apply. The dissolution request was rejected.
For the full ruling, click here (in Dutch).
District Court Rotterdam, 30 March 2020
The employer (a pharmacy) sought dissolution of the pharmacist’s employment contract for underperformance, a disturbed working relationship, or the i-ground. The employer had not started an improvement plan, meaning the employee had no genuine chance to improve her performance. The subdistrict court did not dissolve the contract for underperformance.
Nor did it dissolve the contract for a disturbed working relationship, since the employer based that disturbance on the same facts and circumstances used to substantiate the underperformance. As those circumstances could not support dissolution on their own, they could not form the basis for dissolution due to a disturbed relationship either.
The employer had not sufficiently explained the i-ground. It is not for the subdistrict court to gather the circumstances raised under the individual grounds for the purposes of the i-ground and independently assess whether that is enough for a fully established i-ground. The dissolution request was rejected.
For the full ruling, click here (in Dutch).
Questions about the above? Please contact one of Sørensen Advocaten’s employment lawyers. Call: +31 (0)10-2492444
