In brief

In the event that a position becomes redundant, employers are obliged to investigate whether the affected employee can be reassigned to another suitable position, before they can pursue termination. The reassignment assessment must cover the entire group of companies, which raises a number of questions, especially for large multinationals. Because what exactly is expected of employers and what does this mean in practice?

Active role

The employer must actively and personally guide the employee during this process, take the initiative and remove obstacles (if any) to reassignment. Handing over a list of vacancies is not sufficient. The employer can, at least, be expected to inquire about vacancies at other locations/sites and discuss the outcome with the employee. Even if the chance of reassignment is presumably small, the employer should discuss the possibilities with the employee. Offering one suitable position, provided it is actually suitable, may suffice.

No obligation to achieve a certain result

An important note is that the reassignment obligation is not an obligation to achieve a certain result, but an obligation to perform to the best of one’s ability. Therefore, if the outcome of the investigation is that the employee cannot be reassigned, the obligation to reassign may still have been met. Whether the employer has made sufficient efforts in a group context depends (amongst others) on the circumstances within the group. Case law and the UWV’s policy rules show that the following relevant factors may be considered:

• the degree of interdependence between the group companies (which is expressed, for instance, in the group-wide deployment of personnel or the presence of an internal job vacancy bank);
• the employer’s control over other group companies;
• the economic conditions at the other group companies (the worse the conditions, the less likely it is that suitable jobs are available);
• the size of the group (the larger the group, the more likely it is that suitable jobs are available); and
• additional obligations (for example a social plan in which an employer undertakes to make a concrete effort to redeploy employees throughout the group).

Reasonable?

Finally, arguments based on reasonableness can also play a role. On the basis of further consideration of the circumstances of the case, an employer may come to the conclusion that reassignment, although possible, is not reasonable. Because of the entrepreneurial freedom, the employer is allowed some discretion in this respect. In the case of group companies, an employee does not by definition have priority over external candidates or temporary workers. The basic principle is that group companies must be able to pursue their own personnel policy.

Should the conclusion be that reassignment is not an option, it is important that employers explain their reasons for this, for example, because it would be disproportionately expensive or otherwise onerous.

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