Residual category h-ground

Residual category of dismissal

If the continuation of the employment contract cannot reasonably be required of the employer, this may constitute a ground for dismissal pursuant to Section 7:669(3) of the Dutch Civil Code. For this ground for dismissal, you should submit an application to the subdistrict court.

Article 7: 669 (3) h BW

1. The employer may terminate the employment contract if there are reasonable grounds for doing so and it is not possible or reasonable to reinstate the employee in another suitable position within a reasonable period of time, either with or without training. Reinstatement is in any case not an obvious choice if the employee can be blamed for his actions or omissions as referred to in paragraph 3 under e.
2. (…)
3. Reasonable cause as referred to in paragraph 1 means:
   (…)
   
   h. circumstances other than those mentioned above, which are such that the employer cannot reasonably be required to allow the employment contract to continue.

The residual category: what is it?

The legislator wanted to list the grounds for dismissal exhaustively in Section 7:669 of the Civil Code. The remaining category, the so-called h-ground, was intended for very exceptional cases. For example, a detained employee or an illegal employee. Case law now seems to be stretching the possibilities. The 'h' ground is now also applied if there is a fundamental difference of opinion about the policy to be pursued while there is no question of a disturbed working relationship or dysfunction. In any case, it is not possible to use the h-ground as a sweeping provision: various insufficient grounds for dismissal may not be 'added together' in order to be considered a reasonable ground together.

Examples

Court dated 22 December 2015: The court dissolves the employment contract with an employee with whom there has been no contact for about a year. According to family, he has been reported missing. It cannot be established that employee is not entitled to transitional compensation.
Court 2 December 2015: The employment contract of the director of art institution De Appel was dissolved because of a difference of opinion with the management about the policy to be pursued that was so great that it was unrealistic to expect coaching or an improvement programme to be able to improve this.
Court dated 22 December 2016: The subdistrict court dissolved the employment contract because of the employee's detention. The judge ruled that the circumstance of detention was such that the employer could not reasonably be required to allow the employment contract to continue. The judge described the circumstances that play a role, such as the seriousness of the crime, the length of time the employee was held in detention and the way in which this reflects on the employer, his age, the length of his employment and his position on the labour market.

Reimbursement

As a rule, the employee will be entitled to transitional compensation, unless he can also be blamed. If the employer is at fault, fair compensation is also possible.