Reinstatement of the employment is getting more common

The Court does not have to grant a relief when the terminated employee will be reinstated after all.

If an employment has been wrongly terminated, the Court can order reinstatement. Before 2015, it was not possible to appeal such a court decision or to take it to the Supreme Court, but now this can be done. Because of this, an employment that was reinstated or terminated by a District Court might still be terminated or reinstated in appeal and Supreme Court proceedings.

In practice

A recent case dealt with a conflict between an employee and her employer. The employee had been in service of a company in the health care sector for almost 40 years. During the past years, the employee performed less adequately so that the employer ultimately requested the Subdistrict Court to terminate the employment. The Court granted the request.

The employee disagreed with the decision and lodged an appeal. Subsequently, the employer was instructed to reinstate the employment, though not with retroactive effect. What about the period between the termination and the reinstatement of employment? Is the employee entitled to compensation even if she has not been working in the meantime? The Court may indeed grant a relief for the period in which the employment was interrupted, for instance continued payment of wages, holidays, or compensation of a pension gap. This can become rather expensive because after all, appeal proceedings and proceedings before the Supreme Court might take years.

In this case the Court of Appeal did not grant a relief and the employee brought an appeal to the Supreme Court. According to her, the Court should have granted compensation because the employment had been reinstated. The Supreme Court decided that the Court of Appeal was free not to grant compensation. The Court has to investigate on a case-by-case basis what compensation would be appropriate and therefore, the Supreme Court has the discretion to grant no compensation at all.

In short, the employee has to be reinstated in her job but she is not compensated for the disruption of the employment contract and the negative consequences thereof for the accrual of her pension.

What does it mean for you?

Since the introduction of the Work and Security Act there have been many cases in which employees appealed a dismissal decision. So what could be the most significant consequences for you, as an employer?

• Reinstatement of the employment could be granted. Because of this you might be forced after years of proceedings to reinstate the employee in his or her job, even if you employed another person for the position.
• An additional relief could be granted. A court might for instance grant compensation to an employee due to culpable actions of the employer.

Our advice

Prepare for the consequences of dismissal that might have to be dealt with at a later stage. Our team of employment law specialists will gladly help you identify the options and limit the risks. Would you like further information? Or do you have any other questions regarding personnel or employment law? Please contact us: