Does requirement for reassignment apply to expats too?

Employers in the Netherlands have to try and reassign employees within the company before dismissing them. Does this apply to expats too who often work for widespread international groups?

Reassignment

To dismiss an employee the employer requires a reasonable ground for dismissal. With the introduction of the Work and Security Act, the employer is required by law to try and reassign an employee within a reasonable period in a suitable job, whether or not by means of training. Two important exceptions apply to this requirement:

• Imputable acts or omissions of the employee
• A strained employment relation, provided that it is not possible to transfer the employee to another part of the company, where this conflict does not exist.

If it turns out that it was possible to reassign the dismissed employee and that was not the case, dismissal is no longer an issue. How is this reassignment requirement to be met in case of expats?

When does this scheme apply to expats?

The requirement of reassignment applies to expats in case they work on the basis of an employment contract Dutch law is applicable to, as in the following three situations:

• The employment contract contains that it is governed by the laws of the Netherlands.
• The employee works mainly in the Netherlands and is seconded for a short term only.
• The employer is based in the Netherlands, whereas the employee is not bound to another specific country.

Is the reassignment requirement for expats applied differently?

The situation of expats is different from that of employees in the Netherlands in a certain number of aspects and that may have consequences for the reassignment requirement.

Expats usually work for companies that are part of an international group with multiple locations. That means the employer has more options for reassignment of the employee. Also, a strained employment relationship will less often be a reason for dismissal. After all, a conflict in Tokyo is easy to resolve if one of the parties is transferred to New York.

Due to the reassignment requirement an employee has priority over external applicants. But this is not always the case for expats. In groups the different companies may have a high degree of autonomy. Granting priority to an expat who has to be reassigned is opposed to the autonomy of the individual companies. The reassignment requirement will continue to exist but the employer will not have to look very far.

If the transfer or reassignment of an expat is not possible after the termination of an assignment, there will be directly a reasonable ground for dismissal, which falls under the so-called ground h, the collective ground for other reasons for dismissal.

Conclusion

The reassignment requirement does apply to expats too. The employer of an expat will therefore have to fulfil the requirement for reassignment – just as for any other regular employee. However, there are two crucial differences in the reassignment of expats:

• If a transfer or reassignment of an expat is not possible this will be sufficient reason for dismissal, without additional reasons.
• In certain groups of companies, expats do not have priority in the application process.

More information

Are you an expat and interested in whether or not your employer has to fulfil the reassignment requirement or if he has fulfilled it? Please contact us: