An employee was fired immediately after allegedly making racist remarks in the workplace. The employer had a zero tolerance policy and found the remarks unacceptable. Nevertheless, the subdistrict court ruled that the immediate dismissal was unjustified. How about this?
The trigger: racist remarks
The employee had been employed since late 2021 and worked as a warehouse worker. On March 1, 2023, she was summarily dismissed. The reason: several colleagues stated that she had made racist and discriminatory remarks, including "black people stink," "what a monkey," and generalizing remarks about Muslims.
During a conversation with her employer, she initially confirmed the comments, but later retracted that admission. She allegedly did not fully understand what was being discussed because of a language barrier. Moreover, the employer publicly reported the dismissal 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 put first and foremost that racist remarks in the workplace are absolutely inadmissible. Employers may, and must, take action against this. Nevertheless, the immediate dismissal in this case was deemed disproportionate.
The reason? According to the judge, there were no known previous incidents, the employee was otherwise functioning well and had been employed for almost a year and a half. In addition, it was not clear whether she knew or had committed to the zero-tolerance policy.
A further factor was that summary dismissal has major consequences: the employment ends immediately, the employee no longer receives salary and is also not entitled to unemployment benefits. The court found that the employer could have first sufficed with a less far-reaching measure, such as an official warning.
The verdict: dismissal overturned
The court ruled that the instant dismissal was not legally valid. The employer was ordered to pay:
- a transitional allowance of €995.78
- compensation for irregular termination of €2,155.83
- equitable compensation of €5,000
- and rectification of the message on the intranet
The employer also had to provide a final settlement and pay out-of-court costs. The judge did reject the requested injunction against further statements, as it was deemed too far-reaching.
What does this mean for employers?
This ruling shows that even in cases of seriously inappropriate behavior, a summary dismissal is not just allowed. Judges always look at the overall 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 policy was known to the employee.
A zero tolerance policy only works if it is properly communicated and established. Only then can an employer have legal recourse to it.
Conclusion
A summary dismissal is and remains the harshest remedy an employer can use. It means immediate termination of employment, without notice, and has far-reaching consequences for the employee: loss of income, no right to unemployment benefits, and damage to reputation. Judges therefore apply a strict test, only upholding a summary dismissal in cases of very serious and clearly established conduct.
Employers would be wise to first seriously consider whether a less far-reaching 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 obvious.
In addition, it is crucial that the conduct be properly recorded and that adversarial proceedings be conducted. When in doubt about the seriousness of the incident, the proper procedure or the legal tenability of a summary dismissal, it is always advisable to seek legal advice. This will prevent a well-intentioned but overly rigorous measure from backfiring in the end.
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 transgressive behavior. Please feel free to contact us .
April 2025
