An employee was terminated immediately after she was accused of making racist remarks in the workplace. The employer had a zero-tolerance policy and deemed the remarks unacceptable. Nevertheless, the small claims court ruled that the summary dismissal was unjustified. How is that possible?
The reason: racist remarks
The employee had been with the company since late 2021 and worked as a warehouse worker. On March 1, 2023, she was summarily dismissed. The reason: several coworkers stated that she had made racist and discriminatory remarks, including “Black people stink,” “what a monkey,” and generalizing comments about Muslims.
During a conversation with her employer, she initially confirmed the remarks but later retracted that admission. She claimed she had not fully understood what was being discussed due to a language barrier. The employer also publicly announced the termination on the intranet, emphasizing that racism was involved and that the company has a zero-tolerance policy.
The Legal Test: Is This Dismissal Justified?
The subdistrict court judge emphasized that racist remarks in the workplace are absolutely unacceptable. Employers may, and must, take action against such behavior. Nevertheless, the immediate dismissal was deemed disproportionate in this case.
The reason? According to the judge, there were no known prior incidents, the employee was otherwise performing well, and she had been with the company for nearly a year and a half. Furthermore, it was unclear whether she was aware of the zero-tolerance policy or had committed to adhering to it.
Another factor was that summary dismissal has serious consequences: the employment relationship ends immediately, the employee no longer receives a salary, and is not entitled to unemployment benefits. The court ruled that the employer could have initially taken a less severe measure, such as issuing a formal warning.
The ruling: dismissal overturned
The court ruled that the summary dismissal was not legally valid. The employer was ordered to pay:
- a transition payment of €995.78
- compensation of €2,155.83 for wrongful termination
- fair compensation of €5,000
- and a correction to the notice on the intranet
The employer was also required to provide a final settlement statement and pay the out-of-court costs. However, the judge denied the request to prohibit further statements, as that was deemed too far-reaching.
What does this mean for employers?
This ruling shows that even in cases of serious misconduct, summary dismissal is not automatically permitted. Judges always consider the big picture: the nature of the conduct, the length of employment, the employee’s performance, and the severity of the consequences. It must also be clear that the employee was aware of the policy.
A zero-tolerance policy only works if it is properly communicated and documented. Only then can an employer legally rely on it.
Conclusion
Immediate termination is and remains the most severe measure an employer can take. It entails an immediate termination of employment, without a notice period, and has far-reaching consequences for the employee: loss of income, no entitlement to unemployment benefits, and damage to one’s reputation. Courts therefore apply a strict standard, under which summary dismissal is upheld only in cases of very serious and clearly established misconduct.
Employers would be wise to first seriously consider whether a less severe measure—such as an official warning, a performance review, or a suspension—would suffice. Especially in the case of a one-time incident or if the employee is otherwise performing well, a moderate approach is more appropriate.
In addition, it is crucial that the conduct be properly documented and that the employee be given the opportunity to present their side of the story. If there is any doubt regarding the severity of the incident, the correct procedure, or the legal validity of an immediate termination, it is always advisable to seek legal counsel. This will help prevent a well-intentioned but overly harsh measure from ultimately backfiring.
This blog was written by Stijn Blom, Esq., an employment law attorney at Arbeidsadvocaat.nl B.V. Stijn has extensive experience in employment law and assists employers and employees on a daily basis with a wide range of employment law issues. From dismissal cases to drafting watertight contracts and policies—with his practical and personalized approach, he helps employers and employees move forward. Want to learn more? Visit Stijn’s page.
Arbeidsadvocaat.nl is happy to work with you if you have any questions about inappropriate behavior. Please feel free to contact us .
April 2025