Dysfunction or employer culpability? Here's what judges think
A supervisor confronted with complaints from the team, an employer imposing an improvement plan in response, and an employee calling in sick completely: it sounds like a classic labor dispute. But how far may an employer go based on signals from colleagues? And what if a hearing was not conducted?
A recent case at Inholland University of Applied Sciences focused on exactly these questions. And remarkably: where the subdistrict court firmly convicted the employer, the court of appeal later came to a different opinion.
Complaints through the confidant
The case revolves around an employee who has been employed as a manager since 1999 and manages about 35 people. In the fall of 2022, several employees reported to the confidential adviser with complaints about her method of leadership. Without substantively investigating these complaints or discussing them with the employee herself, an improvement plan was imposed.
According to the subdistrict court, this was a clear violation of the adversarial principle. The reports were anonymous and vaguely worded, and the employee was not given a chance to defend herself. She had also never previously been addressed about her performance. The judge found this to be seriously culpable conduct on the part of the employer and, in addition to a transitional compensation, awarded the employee fair compensation of €155,000, plus reimbursement of her full legal fees.
Appeal: no serious culpable conduct
On appeal, the Hague Court of Appeal ruled otherwise. The court found that the employer had actually acted cautiously, partly to prevent the situation from escalating. A conscious decision had been made not to conduct a formal investigation in order to protect the employee's position. Moreover, the employee himself had agreed to the so-called development plan and there were no direct sanctions.
The court also stated that the employee should have been expected to be open to mediation to restore trust. She had declined that offer from the employer. Because the improvement plan came about in consultation and was not linked to disciplinary measures, the court found no grounds for fair compensation. That had to be repaid.
What can we learn from this?
The ruling of the subdistrict court shows that employers must act carefully when dealing with complaints about employees. An improvement plan without a hearing can be seen as seriously culpable.
At the same time, the court shows that something can also be expected of the employee. If there is room for dialogue and restoration of trust, that opportunity should be taken. Another factor in this case was that the employee himself took the initiative to terminate the employment.
Tips for employers
- Take complaints seriously, but check the facts first.
- Always apply adversarial procedures before jumping to conclusions.
- Use the confidant only for signaling and support, not as a conduit for performance complaints.
- Capture improvement processes and offer support.
- Offer a safe route to recovery, such as through mediation.
Conclusion
A well-intentioned action by an employer can go awry if the basic principles of prudent conduct are not followed. But the reverse is also true: if the employee is not open to recovery, it becomes more difficult to later find the employer seriously culpable.
Are you an employer unsure about how to handle complaints about an employee? If so, please contact us. We will be happy to help you take the right steps and avoid legal risks.
This blog was written by mr. Stijn Blom, employment lawyer at Arbeidsadvocaat.nl B.V. Stijn has extensive experience in employment law and supports entrepreneurs and employees on a daily basis with a variety of employment law issues. From dismissal cases to drafting watertight contracts and regulations - with his practical and personal approach, he helps employers and employees move forward. Want to know more? Visit Stijn's page.
Arbeidsadvocaat.nl is happy to think with you if you have questions about dysfunction or culpable actions. Please feel free to contact us .
April 2025
