Relaxation of the Criterion of Indispensability in Reorganization
Dismissals Decree
The Dismissals Decree sets out a number of requirements which an
employer has to meet if he plans to implement job cuts for reasons
of business management.
First of all, the employer has to make plausible that one or more
jobs must become redundant for these reasons of business management
(unless the employer has already reached agreement about this
redundancy with the trade unions). The employer will then have to
apply the principle of proportionality. Proportionality means that
based on a division of the staff into five age groups - 15-25
years, 25-35 years, 35-45 years, 45-55 years and 55 and up - it is
decided per category of exchangeable positions in what order
employees from these age groups may be dismissed. The objective of
this method is to safeguard the age structure within an
organization.
Criterion of Indispensability Before the
Amendment
Before the Dismissals Decree was amended on 1 August 2009,
employers could already keep certain employees out of a
reorganization on the basis of the criterion of indispensability.
To achieve this, the employer had to make plausible that an
employee had such knowledge or skills that his dismissal would
cause inconvenience to the functioning of the enterprise. There was
no concrete elaboration of how the employer had to prove this. The
UWV would then assess whether the employer had made a sufficiently
plausible case for the employee's
indispensability.
Criterion of Indispensability After
the Amendment
The above-mentioned criterion of indispensability has been
adjusted by the amendment. Employers who now think that an employee
is indispensable may still request the UWV to keep this employee
out of the reorganization, but they do have to fulfill three
conditions:
a. The employer has to conduct a clear and durable policy which
proves that his organization demands of employees that they acquire
the necessary knowledge and skills to perform the duties in the
category of exchangeable functions in which jobs will be cut;
b. the employer has to make plausible that the employee to whom the
request relates really has the knowledge and skills that are so
important to the functioning of the enterprise that another
employee is proposed for dismissal instead of this person; and
c. the employer may consider for dismissal a maximum of 10% more
employees, with a minimum of 1 employee, in the age groups of 15 to
25 years and of 55 years and up than he would be allowed to
consider for dismissal if condition a. or b. would be applied.
This means that the employer will have to conduct a policy
regarding the requirements of skills and knowledge he sets on
employees. Subsequently, the employer will have to make plausible
that the employee whom he considers indispensable has met these
requirements, while the employer is not allowed to dismiss a
disproportionately large number of either the young or the old
employees.
There are hardly any textual changes in the relevant article apart
from the above-mentioned additions. Judging only from the text, we
therefore do not consider the amendment to be a pure relaxation. In
the past employers will also often have tried to prove the
indispensability of employees through requirements of education
which the employees fulfilled brilliantly.
Expected
Consequences
Despite the fact that the textual changes do not necessarily
justify the conclusion that the Dismissals Decree has clearly been
relaxed, we do think it will become easier to make a successful
request to keep certain employees on the basis of the criterion of
indispensability. Before, employers would only succeed in very
exceptional circumstances in keeping employees whom they considered
indispensable out of a reorganization. Since the amendment clearly
shows the will to change this situation, it is expected that a
reliance on indispensability will have more chances of success - as
long as the employer has a clear policy and is able to prove that
the intended employees meet the requirements set in it.