Suspension of an employee under Dutch law
Suspension (schorsing or op non-actiefstelling) is a measure by which the employer temporarily relieves the employee of the obligation to perform work, typically in connection with alleged misconduct, a disciplinary investigation, or a conflict situation. Unlike garden leave, suspension is a disciplinary or precautionary measure that carries a negative connotation and must meet higher justification requirements.
Dutch law does not contain a general statutory provision for suspension. The basis must be found in the employment contract (an explicit suspension clause), an applicable collective labour agreement, or the inherent authority of the employer under the employment relationship (instructierecht). Without a contractual basis, courts assess the lawfulness of a suspension against the requirements of good employer practices (goed werkgeverschap) under Article 7:611 of the Dutch Civil Code.
Pay continuation during suspension under Dutch law
During suspension the employer must in principle continue to pay the employee's salary. Article 7:628 of the Dutch Civil Code obliges the employer to pay wages if the employee is willing and able to work but is prevented from doing so by a circumstance attributable to the employer - which includes an unlawful suspension. Only if the suspension is justified and the employment contract contains an explicit clause allowing wage reduction or suspension can the employer withhold (part of) the salary. Courts are very reluctant to condone salary suspension and may order interim payment via summary proceedings (kort geding).
Duration and procedural requirements under Dutch law
A suspension must not last longer than strictly necessary. The employer should conduct the underlying investigation or disciplinary process without delay. Where a suspension is connected to a dismissal process, the employer should submit the dismissal application to the UWV or the subdistrict court promptly. A lengthy suspension without clear progress may be challenged by the employee in court and may entitle the employee to compensation. The employee should also be given the opportunity to respond to the allegations before the suspension is formally pronounced, in line with procedural fairness principles (hoor en wederhoor).
Where an employer suspends an employee pending investigation into alleged misconduct and subsequently pursues summary dismissal under Article 7:677(1) of the Dutch Civil Code, Dutch courts require that the summary dismissal follows as soon as reasonably possible once the urgent reason has been established - a short investigative delay is accepted, but a prolonged suspension followed by belated summary dismissal risks being found procedurally defective. As a precautionary measure, employers who are uncertain whether the facts justify summary dismissal often pursue a dual strategy: they summarily dismiss the employee and simultaneously request the subdistrict court to dissolve the employment contract on the e-ground (seriously culpable conduct) in case the summary dismissal is later overturned, so that the employment ends in any event by judicial order under Article 7:671(1)(a) of the Dutch Civil Code.