Continuing to pay wages
Under Section 7:628 of the Dutch Civil Code (BW), an employer is required to continue paying an employee’s wages for a certain period if the reason for the employee’s absence falls within the employer’s sphere of risk.
An employee who is in detention is not entitled to be paid for the days not worked, because detention falls within the employee’s own sphere of risk. This can be different, however, if the employer itself imposes various measures on the detained employee.
ECLI:NL:GHARL:2021:11189
At first glance, suspending the employee may seem like the sensible choice, but this is not always the case. A suspension falls within the employer’s sphere of risk, even where the employer had good reason to suspend the employee and the suspension is the employee’s own fault. On 6 December 2021, however, the Court of Appeal ruled that an employer suspending an employee does not automatically mean the employer must now continue paying wages, because the ability to work is still fundamentally blocked by the detention itself. In that case, the employer had suspended the employee under a provision in a collective labour agreement (CLA), which required the employer to continue paying wages to the employee concerned when imposing a suspension.
Dismissal
As early as 5 July 2007, the court ruled that the mere fact that an employee did not perform his work while in detention is not, on its own, grounds for immediate dismissal. Nor can the employment contract simply be dissolved on one of the grounds listed in Section 7:669(3) BW.
To proceed with dismissal, the employer must show a connection between the criminal offence committed and the employee’s work. The court considers that the employer has a lesser interest in dissolving the contract, since it does not have to continue paying wages. An employee working in hospitality who assaults someone outside working hours cannot, therefore, simply be dismissed on the basis of that conduct alone.
What does this mean for employers?
Employers’ options for taking action against a detained employee appear limited. Even so, there are cases in which dismissal is possible, depending on the circumstances of the case.
Is your employee in detention or pre-trial custody, and do you have questions about the employment-law consequences? Do not hesitate to contact one of our employment lawyers!
