Can an employee be fired if he becomes incarcerated?
If you have to serve time in jail as an employee, it does not automatically mean that you will be fired. In fact, detention does not necessarily lead to the end of employment in all cases. Nevertheless, it falls under one of the legal grounds for dismissal that allow for termination of the employment contract. The specific circumstances of the case are decisive.
A real-life example illustrates this well. In a recent case,an employer found out that an employee had yet to serve a prison sentence of more than two years. The sentences had been imposed on him in Poland in 2007. Upon this, the employer requested the subdistrict court to terminate the employment.
Why did detention here lead to dismissal?
The judge agreed with the employer's request. The main reason was that the employee would not be employable for a long period of time. As a result, the employer had to hire someone else to do the work. Another factor was that it was unclear whether the employee would be able to obtain a Certificate of Good Conduct (VOG) after his detention, even though this certificate was necessary for the job.
Although the dismissal was thus ordered, the subdistrict court did award the employee a transitional allowance . This was because the employee had rightly argued that the offenses were from a distant past. In the Netherlands, he would probably have received, at most, community service for similar offenses. These circumstances ensured that the dismissal was not regarded as "seriously culpable," as a result of which the employee remained entitled to the transition allowance.
Key concerns in detention
Thus, detention is not an automatic reason for dismissal, but does allow for termination of employment if the absence interferes with the functioning of the company. In addition, factors such as the need for a VOG and the seriousness and timeliness of the offenses may factor into the assessment.
Employers and employees are well advised to seek legal advice in such situations to avoid mistakes in terminating employment.
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.
Arbeidsadvocaat.nl is happy to think with you if you have questions about dismissal. Please feel free to contact us .
April 2025
