Dismissal during reorganisation: separation principle tool

Dismissal in reorganisation means that your employer is making structural changes in the organisation where jobs disappear or change.

A reorganisation may be caused by the following:

• Your organisation is facing financial difficulties, which means they need to cut back on labour
• New technology changes (such as AI) make functions obsolete
• A number of large customers have left structurally, resulting in less work 
• Your company has moved to another location, making it impossible for some employees to work with you in the company
• There has been a merger over acquisition, creating duplicate functions

The most important thing to remember: your employer cannot just decide who gets fired. There are strict rules that determine who gets fired first.

A reorganisation is more than just cutting a few jobs. It involves a permanent change in the organisation. Before it can be formally called a reorganisation, your employer must be able to demonstrate that:

1. The change is necessary for the survival of the business
2. There is structurally less work
3. Functions disappear for good
4. There is no possibility of placing you in another department in the company

Even if employers can formally speak of a reorganisation, they have to follow strict procedures around firing employees. This goes wrong in many cases, as a recent example from our legal practice showed.

We were approached by a customer service employee on a permanent contract. Due to automation, half the employees could leave. Here, the employer made the choice to dismiss the employees who performed the least. To do this, he took all performance reviews and included this in his consideration. 

This is not allowed, because a reorganisation must be based on the principle of separation by virtue of age.

The apportionment principle is the legal method that determines which employees are laid off in a reorganisation. This principle ensures that the age structure of your team remains roughly the same after the reorganisation as before.

It was devised by the Dutch government in 2006 and formally enshrined in Article 11 of the redundancy regulations.

The apportionment principle prevents employers from dismissing employees arbitrarily or very specifically. Think, for example, of firing all older employees. Or just the expensive employees, who receive more salary. The system was devised to:

• Preventing discrimination
• Ensure objectivity in who is dismissed
• Maintain an age distribution that existed before the reorganisation
• Rule out arbitrariness

Before applying the multiplier principle, it must first be determined which jobs interchangeable are. Functions are interchangeable if they are similar in terms of:

• Work content and tasks
• Remuneration level (maximum 1 scale difference)
• Knowledge and skills required
• Responsibilities

Note: It is about the function, not the person. Even though your background might allow you to do a different job, that does not make that job interchangeable.

Applying the separation principle is done according to a set roadmap. I walk you through them:

Does your company have several branches? Then the separation principle applies for each branch. A branch is independent if it:

• A business of its own has
• Recognisable in society as a separate entity

All functions that are interchangeable form one group. For example: all administrative staff level 3.

The reference date is the day your employer submits the dismissal request to the UWV. It is on this date that we look at who is employed.

Before true mirroring begins, these groups must leave:

1. Temporary workers and temporary workers
2. State pension beneficiaries
3. On-call workers (zero-hours contracts)
4. Temporary contracts expiring within 26 weeks

The remaining workers will be divided into five age groups:

• 15 to 25 years
• 25 to 35 years
• 35 to 45 years
• 45 to 55 years
• 55 years to state pension age

Within each age group: he who came last goes first. So your service time is crucial.

There are some exceptions to the attrition principle:

• Employees with a unique, indispensable function
• Situations where application leads to a unreasonable result leads
• Divergent rules in the CLA

Have you calculated above whether you can be dismissed on the basis of the principle of separation? If so, you have a number of important rights. We will go through them with you step by step.

Your employer must give you timely and complete inform on:

• The reason for the reorganisation
• Exactly how many jobs will disappear
• How the selection takes place
• Planning the reorganisation

Before you can be dismissed, your employer must seriously investigate whether you can be redeployed elsewhere in the company. This also applies to:

• Positions in other branches (at large companies)
• Functions you are suited to with short training
• Lower-level positions (with retention of salary)

You are entitled to a statutory notice period that depends on your years of service:

• 0-5 years employment: 1 month
• 5-10 years employment: 2 months
• 10-15 years employment: 3 months
• 15+ years employment: 4 months

Upon dismissal, you are entitled to a transition allowance. This amounts to:

• 1/3 monthly salary per year worked
• Plus 1/12 monthly salary per month in an incomplete year

When dismissed due to reorganisation, you are usually entitled to a WW benefit. Your employer may not force you to "voluntarily" resign which will cause you to lose your unemployment benefits.