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CASESE Passende werkzaamheden, of toch niet?

CASESE Passende werkzaamheden, of toch niet?

Passende werkzaamheden, of toch niet?

3 minuten mr. Mariëlle Ducaat Employment Law for Employers Tuesday 17 January 2023 2025

If an employer has issues with an employee in a certain position, there are various (both respectful and less respectful) routes that employers use to, unceremoniously put, “let go” of employees. One of our clients almost became a victim of such a premeditated plan. Fortunately, we were able to prevent this. Here’s what happened.

The client had worked for a long time as a caregiver at a large healthcare institution in one permanent location. The client managed a small team on the work floor and reported to their supervisor. Due to a “mismatch” between our client and their direct supervisor, the healthcare institution preferred to see our client leave. To achieve this, the employer leveraged a large-scale reorganization. Due to “reduced work” at the current location, the client would now be deployed across different locations, with various types of care recipients. For our client, this concretely meant running around to fill in as a “floating support” wherever needed.

The main question in this case was whether the offered (new) tasks could be considered suitable and whether our client was obligated to accept them unconditionally. The employer thought so—of course. However, we disagreed.

While it happens frequently, an employer cannot simply implement a unilateral change in position. In this case, no unilateral change clause was included in the employment contract, so we had to assess whether the job change was acceptable based on Article 7:611 (good employer practice). This provision requires that both employer and employee act as a good employer and good employee towards each other. This means that, under certain circumstances, an employee may be expected to accept reasonable proposals from the employer related to changed conditions. All circumstances of the case must be considered in this assessment.

In our client’s case, we first questioned the reasonableness and necessity of the proposed job change. The employer did not have a valid reason, as our client’s role still existed—it was simply being filled by someone else. We then pointed out to the employer that the client’s interest in continuing to exercise their original role could not be disregarded. This ultimately led the employer (out of necessity) to look for tasks that were indeed suitable for our client. Today, our client still works for the healthcare institution, in a different (higher) position with a better salary, to the satisfaction of both the employer and our client.

This case demonstrates that even in seemingly hopeless situations, applying the necessary (legal) pressure can turn the tide, all while keeping the ultimate goal in mind—a positive working relationship between the employer and our client.

mr. M.S. Ducaat

mr. M.S. (Mariëlle) Ducaat

Jurist en Mediator

Mariëlle adviseert en procedeert op het gebied van Employment Law, Administrative Law, Contract Law en Tenancy Law. Volg Mariëlle ook op LinkedIn. Bereikbaar via ducaat@wolderwijd-juristen.nl of 036 522 7007.

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