Employer Obligation to Reassign Expat to New Suitable Position Within the Group

Precedential Decision by Judiciary or Regulatory Agency

Author: Dennis Veldhuizen, Partner – Littler Netherlands

On January 18, 2019, the Supreme Court of the Netherlands clarified that employers have a certain margin of discretion in determining whether they can reassign an expat employee to an alternative suitable position within an operating group of companies. Although employers are obliged to use their best efforts to reassign expats, this obligation is limited by reasonableness. Here, an expat’s work permit had expired and the employer attempted but could not find a new suitable position for this employee within the group. The court ruled that the absence of reassignment possibilities could qualify as a reasonable cause for dismissal, falling under the “h-ground” of dismissal (i.e., a residual category). The Supreme Court’s decision offers special insights for employers and employees (expats) who are part of an internationally operating group of companies on the importance of a good understanding of (the scope of) the reassignment obligation.