A relatively common question in employment law is: can an employee be dismissed in connection with offences committed outside working hours?
First of all, an employer does not have to continue paying the employee’s salary while the employee is in pre-trial detention or in prison. However, the below decisions show that it is not easy to dismiss a convicted, imprisoned employee if there are no clear work-related connections.
First, a decision of the subdistrict court of Deventer in 2006.
This involved an employee who, after a chase, was arrested on the company premises of the employer (a printer) in connection with assault and attempted rape. The subdistrict court found that it concerned offences committed in the private sphere, which the employee had been punished for, and that the mere fact that the chase ended on the company premises was insufficient to rule that the workplace had been involved in the offence in a manner that was relevant for employment law purposes. In addition, it concerned offences committed within the employee’s relationship, which meant that there was no risk of these being repeated on the work floor.
Therefore, this employee could not be dismissed, and the employment was upheld.
In a Supreme Court judgement in 2010, it concerned a bank employee, who was sentenced to prison in connection with indecent acts with his minor stepson. He continuously kept his employer informed of what was going on, including when the appeal that was initially lodged was withdrawn. Shortly thereafter, the bank dismissed the employee with immediate effect since, as the bank argued, its confidence in the employee had been irreparably damaged.
The employee subsequently requested a declaratory decision from the court that the dismissal with immediate effect was null and void. The court and the court of appeal allowed the claim. The bank subsequently brought the appeal to the court in cassation. The Supreme Court found that the mere fact that, as a result of being imprisoned, the employee had been absent from work was not sufficient to justify dismissal with immediate effect. The fact that, due to the imprisonment, the employee had been absent from work for some time, did not automatically mean that there was an urgent cause to justify the dismissal with immediate effect. In addition, this employee had been in the bank’s employment for a long time and had an excellent work record, the sentence was related to facts that only took place in the employee’s private sphere, and the bank did not suffer a loss as a result of the long-term absence. All things considered, the dismissal with immediate effect was found to be unjustified.
If the offence committed by the employee is related to the employment, dismissal will in many cases be possible. In some cases, it may even constitute an urgent cause for dismissal with immediate effect.
Further information
For additional information please feel free to contact Mieke Bestebreurtje.
