Introduction
When an employee is on remand or serving a prison sentence, it raises questions about the employment relationship. Dismissal is not always immediately possible. This blog explains the legal steps employers can take and the considerations judges make when dismissing an employee during detention.
Dismissal on remand
When an employee is detained because he is suspected of a criminal offense, dismissal is not possible just like that. According to the law, the basic principle is that a person is innocent until proven guilty. In principle, as long as there is only a suspicion, an employer cannot give instant dismissal. In this situation, it is more obvious to stop wages temporarily, because the employee cannot perform his work.
Dismissal after conviction
If an employee has been convicted and is actually serving a prison sentence, summary dismissal may be considered. Yet this is not automatically allowed. A well-known ruling shows that the courts apply a strict test. In a case involving an ABN AMRO financial employee who had been convicted of lewdness with his stepson, the Supreme Court ruled that the instant dismissal was not legally valid. The offence took place entirely in the private sphere, did not affect the employee's performance and the employer had not suffered any direct damage.
Dismissal through the district court
When immediate dismissal is not possible, an employer can submit a dissolution request to the subdistrict court. In doing so, the judge makes a balancing of interests. The duration of the detention, the nature of the offense and the consequences for the company are considered. Especially if there is a clear relationship between the work and the offense, for example in the case of a driver convicted of drunk driving, there is a greater chance that the request will be granted.
No obligation to keep workplace free
Case law has further established that an employer is not required to keep an employee's job vacant when the employee is on long-term detention, for example, for more than two years. Again, a careful and correct approach is essential to avoid legal risks.
Conclusion
Dismissal upon detention is legally complex. A mere suspicion is insufficient for instant dismissal; after conviction, the court assesses whether the criminal offense affects the employment contract. A careful approach is essential to avoid mistakes and legal claims.
This blog was written by Mr. Stijn Blom, employment lawyer at Arbeidsadvocaat.nl B.V. Stijn has extensive experience in employment law and assists entrepreneurs daily with a wide range of employment-related matters. From dismissal cases to drafting watertight contracts and policies – with his practical and personal approach, he helps employers and employees move forward. Want to know more?Visit Stijn's page.
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April 2025
