1. New implementation rules
Earlier, we gave an overview of the most important changes of the new implementation rules of the UWV with regard to dismissal on economic grounds (DEG). For example, the new implementation rules for DEG are linked to the Shell ruling of the Supreme Court, from which it follows that the redeployment obligation is not a result obligation but a best-efforts obligation. This ruling has also been incorporated into the new implementation rules for dismissal in the event of long-term incapacity for work (LIW). It is necessary to look at what can be expected from an employer in the given circumstances and the employer has a 'certain margin of discretion' in this respect. The new implementation rules of both EG and LIW also provide examples of how the term 'interchangeable position' should be applied.
The General Data Protection Regulation (GDPR) also came into force on 25 May 2018. This has also been taken into account in the new implementation rules for DEG and LIW.
2. Test for dismissal in the event of LIW
Long-term incapacity for work occurs when the period during which the ban on giving notice in the event of illness applies has expired and the employee has not been recovered from illness. Usually this is after a period of two years (Article 7:669 paragraph 3 under b in conjunction with Article 7:670 paragraph 1 under a of the Dutch Civil Code). The determining factor is the question whether the employee is incapable of performing the stipulated work. In the event of a request for dismissal, the employer must provide information about the position that the employee held before he or she became ill. The mere fact that an employee carries out other work during illness, or the same work in an adapted form, does not mean that this work has automatically become the stipulated work. A change in the 'originally' stipulated work may, however, be apparent from a written amendment to the employment contract agreed with the employee.
In order to make it plausible that the employee is long-term incapacitated to perform the stipulated work, the employer must submit a Work and Income (Capacity for Work) Act -decision with appendices (or other relevant documents showing this). The employer must explain in the dismissal application why it is not possible or not reasonable to redeploy the employee within a reasonable period to a suitable position within the company or group (Article 7:669 paragraph 1 of the Civil Code). The reasonable period is in principle equal to the statutory notice period. For employees who are dismissed after reaching the state pension-age (AOW gerechtigde leeftijd), the reasonable period will be one month. In the case of an employee with a work-limiting disability - this includes an employee who is long-term incapacitated to perform the stipulated work - the reasonable period is 26 weeks.
3. Redeployment in the event of LIW
If there is a possibility of redeployment, the employer will, in principle, have to offer this position. This follows from the statutory principle of redeployment. However, there may be circumstances on the basis of which it does not seem logical for the employer to make use of this redeployment option. The new LIW implementation rules stress that this can occur, for example, if redeployment of the employee to a position with a group company abroad is disproportionately expensive or otherwise problematic. The employer will have to explain and substantiate this. Anything that is within a reasonable reach of the employer may be demanded. The nature and size of the organization may be relevant in this respect. The degree of control of the employer that is necessary to enforce the redeployment of the employee and the freedom of the other companies within the group to conduct their personnel policy as they see fit can also play a role.
If the authority and/or influence of the employer on the hiring policy extends beyond its own company, it will therefore have more opportunities to promote the redeployment of the redundant employees. The obligation to carry out research within the entire group to which the employer belongs is reflected in the dismissal application. If the employer does not have the authority and/or influence to redeploy an employee to a group company, he will have to substantiate in the dismissal application why it is not possible to redeploy the employee within the company or the (international) group or cannot reasonably be expected of him under the given circumstances.
4. Practical significance for employers
The obligation to investigate redeployment possibilities within the group already existed under the old LIW implementation rules. However, on the basis of the new LIW implementation rules that came into force on 1 October 2019, the employer will have a stricter obligation to substantiate the inability to redeploy the employee within the group. An employer who does not have the authority and/or influence to redeploy an employee to a group company must include this in the dismissal application with documents.