Urgent reason for dismissal (dringende reden) under Dutch law
A summary dismissal (ontslag op staande voet) - the most drastic form of dismissal under Dutch law - is only lawful if there is an urgent reason (dringende reden) for it. Article 7:677 of the Dutch Civil Code gives both employer and employee the right to terminate the employment immediately for an urgent reason. Article 7:678 of the Dutch Civil Code provides a non-exhaustive list of examples of what constitutes an urgent reason for the employer to dismiss: theft, fraud, deliberate damage to company property, disclosure of confidential information, persistent intoxication, insubordination, and violence, among others.
Dutch courts assess urgency rigorously. The urgent reason must be of such a serious nature that, in light of all the circumstances of the case, the continuation of the employment - even temporarily during a notice period - cannot reasonably be expected from the employer. This is a strict standard. Factors taken into account include: the nature and seriousness of the conduct, the employee's employment history and position of trust, the consequences for the employee of losing their job, and whether the employer acted consistently (was the same conduct tolerated in other employees?).
The immediacy requirement under Dutch dismissal law
A summary dismissal must be given immediately upon the employer learning of the urgent reason. Any delay - even of a few days - may render the dismissal invalid, as the delay indicates that the matter was not in fact so urgent as to preclude a normal dismissal procedure. The Supreme Court (Hoge Raad) has confirmed that the employer is allowed a short investigation period to establish the facts before dismissing, but this period must be used efficiently.
Communication of the reason under Dutch law
At the same time as the dismissal, the employer must communicate the urgent reason to the employee (Article 7:677(2) of the Dutch Civil Code). If the employer fails to do so, the dismissal is invalid. The communicated reason also determines the scope of the legal proceedings: the employer cannot rely on a different reason in court. This requirement makes it essential for the employer to have a clear and legally sound reason in place before effecting the dismissal.
Article 7:678 of the Dutch Civil Code provides a non-exhaustive list of urgent reasons for the employer, including theft, fraud, deliberate deception during the application procedure, drunken or reckless behaviour, deliberate damage to company property, disclosure of confidential information, and persistent insubordination; Article 7:679 of the Dutch Civil Code provides the corresponding non-exhaustive list for the employee, including serious delay in wage payment and sexual harassment. The Hoge Raad has held that all circumstances of the case must be weighed together: the nature and seriousness of the conduct, the nature and duration of the employment, the employee performance record, personal circumstances such as age, and the consequences of dismissal for the employee. Even a faultless employment record does not automatically prevent a justified summary dismissal where the underlying conduct is sufficiently serious; conversely, a dismissal may be disproportionate where the same conduct was previously tolerated in other employees.
Article 7:678 of the Dutch Civil Code provides a non-exhaustive list of urgent reasons for the employer, including theft, fraud, deliberate deception during the application procedure, drunken or reckless behaviour, deliberate damage to company property, disclosure of confidential information, and persistent insubordination; Article 7:679 of the Dutch Civil Code provides the corresponding non-exhaustive list for the employee, including serious delay in wage payment and sexual harassment. The Hoge Raad has held that all circumstances of the case must be weighed together: the nature and seriousness of the conduct, the nature and duration of the employment, the employee performance record, personal circumstances such as age, and the consequences of dismissal for the employee. Even a faultless employment record does not automatically prevent a justified summary dismissal where the underlying conduct is sufficiently serious; conversely, a dismissal may be disproportionate where the same conduct was previously tolerated in other employees.