A summary dismissal is a drastic measure. It means an immediate termination of employment without a entitlement to the statutory transition fee (‘transitievergoeding’) . Additionally, the dismissed employee is not entitled to unemployment benefits. Therefore, most employers are cautious about resorting to summary dismissal.

However, unnecessary mistakes often occur during the dismissal process. These mistakes can be costly for employers because if the dismissal is unjustified or the procedure is not correctly followed, the employee can have the dismissal annulled at the Court within two months, or demand an additional award (‘billijke vergoeding’) instead.

In this blog we help employers and HR professionals with 5 essential tips for summary dismissal.

Tip 1: Verify the ‘compelling reason’ and ensure you can prove the facts

Article 7:677 of the Dutch Civil Code stipulates that a legally valid summary dismissal can only be given for a compelling reason. A ‘compelling reason’ is one so serious that it is unreasonable to expect the employer to continue the employment relationship. Think of theft, serious misconduct in the workplace, or fraud.

The employer must be able to prove the facts underpinning the compelling reason (see also Tip 2 below). If it’s clear that something is critically wrong but the evidence is shaky, consider initiating a dissolution procedure in court for (severe) culpable conduct by the employee or a disruption of the employment relationship (see Tip 5).

Tip 2: Investigate the facts thoroughly and hear the employee

Sometimes there are clear indications of irregularities or undesirable behavior, but the facts or the employee’s role are unclear. In such cases, the employer needs to conduct further investigation.

Send the employee home, pending the investigation. . Inform the employeehow long the investigation is expected to take and keep him or her updated on any delays. Generally, the employee is entitled to salary during the exemption from work, as case law has determined that such risks fall on the employer.

If an investigation involves hearing the employee, make sure to draft an interview report.

When no investigation is needed because the employee’s role is immediately clear or the investigation is already complete, confront the employee with your findings and ask for a reaction before proceeding with dismissal. This might involve hearing the employee twice: once during the investigation and once to present your findings.

It is sometimes not possible to hear the employee, for example, due to illness, detention, or because the employee simply doesn’t show up. The summary dismissal must still be given promptly (see Tip 3 below), so the possibility to postpone the hearing is very limited. If you decide to dismiss without hearing the employee in such a situation, we advise mentioning in the dismissal letter why no hearing was conducted. It’s essential to realize that case law indicates that there is no absolute right to be heard, and not conducting a hearing does not necessarily invalidate the dismissal.

Tip 3: Act promptly

Article 7:677 of the Dutch Civil Code requires that a summary dismissal be given ‘promptly.’ This means the employer must act immediately or shortly after discovering the compelling reason and, if desired, proceed with summary dismissal. A delay can void the summary dismissal, which allows for its annulment by the Court at the employee’s request within two months.

The employer may use a reasonable period to investigate the matter or seek legal advice. How long that ‘reasonable’ period is depends on the specifics of the investigation. For example, obtaining security camera footage may take a few days, and multiple witnesses might need to be heard as part of the investigation. Generally, a period of a few days (maximum a week) is acceptable; a longer period demands a valid reason for the delay.

If an external investigator is hired, they must act promptly too, as the employer remains responsible for the process.

Tip 4: Explain why the employee is being dismissed and confirm the dismissal in writing

The reason for the dismissal should be communicated and explained directly to the employee. This can initially be done verbally, however ensure you send a dismissal letter the same day or the next day at the latest. This letter should confirm the verbal dismissal and explicitly state the compelling reason(s).

If multiple reasons exist, list all of them in the letter, specifying that these reasons ‘each individually and in combination’ justify the dismissal. Including this phrase prevents the dismissal from being undermined if one or more of the cited reasons cannot later be proven.

Once the reason(s) is or are stated in the dismissal letter, they cannot be supplemented later. The dismissal letter ‘fixes’ the grounds for dismissal and must therefore be complete.

Also, mention in the letter that you have heard the employee and that you considered any personal factors like age, disability, or length of service.

If the dismissal is later challenged in court, the dismissal letter plays a crucial role. We therefore recommend to have the letter legally checked.

Send the dismissal letter by registered mail and email or regular post. Although not strictly required, it is advisable to also notify the employee via WhatsApp or SMS that a letter has been sent, especially if there’s concern about timely receipt.

Tip 5: Is the evidence wavering? Then consider a dissolution procedure at the Court instead of dismissal

If the summary dismissal wavers due to, for instance, too much time having passed or the evidence for the compelling reason being thin, you may consider opting for a ‘regular’ termination by mutual consent (through a settlement agreement) or initiating a dissolution procedure at the court.

In a dissolution procedure, different rules apply, and the threshold for the employer is lower. The employer does not need to prove a compelling reason but can base the request, for example, on (serious) culpable conduct by the employee or a disrupted employment relationship. Promptness as required in summary dismissal does not apply in dissolution procedures.

However, dissolution procedures take time (usually several months), and the employee typically receives salary during this period. If the employment agreement is dissolved by the court, the employer will also have to pay the statutory transition compensation, unless it can demonstrate that the employee has acted in a severe culpable manner.

If unsure about summary dismissal, consult with the employment law attorneys at Penrose. They are of course happy to help you make this consideration.

Conclusion

Following these tips will reduce the risks associated with granting a summary dismissal and strengthen your position should the employee later challenge the dismissal in court.

Every situation is unique. Summary dismissal remains a bespoke action, and seeking legal advice before proceeding is recommended. Our team is available to assist with any questions or concerns.

If you have any questions about summary dismissal after reading this blog or are you unsure whether it is wise to proceed with summary dismissal? Feel free to contact Klaartje Stalenhoef at k.stalenhoef@penrose.law or another employment law attorney at via phone at 020- 20 24 00 710 Alternatively, you may also reach out to any of our other employment law attorneys.