In a recent legal ruling, the court granted the employer's request to terminate the employment contract of an employee based on the "h-ground" (rest ground). The employee had been employed by the employer since 2012, an organization that acts as a one-stop-shop for procurement and assigns its employees to various clients. The court granted the employer's request after the employer provided sufficient evidence demonstrating that the employee was unemployable and experienced prolonged periods of inactivity, commonly referred to as "bank sitting." As a result of the termination, the employee is entitled to a gross transit compensation of €13,414.43.

The employee earned a gross monthly salary of €3,413.34, excluding vacation allowance. Since November 2022, the employee encountered difficulties in finding new assignments with clients. On November 9, 2022, a meeting took place between the employee and their supervisor, who was also a member of the management team, to discuss the termination of the employment contract. Following this meeting, the employer did not make any concrete attempts to place the employee with clients. On November 15, the employee reported sick. Despite efforts to negotiate a joint termination arrangement since the beginning of December 2022, discussions between the parties were unproductive.

The employer requested the termination of the employment contract on the "h-ground," which indicates that the employee was no longer placeable. Although the court acknowledged that a statutory dismissal prohibition applied due to the employee's inability to work due to illness, the court ruled that this prohibition did not apply to the termination request, as the dismissal prohibition was not related to the employee's unemployability. The request was based on the employee's unemployable status.

In its ruling, the court noted that the employer provided sufficient evidence demonstrating that almost all of the employee's assignments had been terminated prematurely since 2020, resulting in extended periods of inactivity. The reasons for these terminations were attributed to the employee's inability to distinguish between main and side issues, excessive talking, difficulty fitting into groups, and failure to adapt to the professionalization of tasks. Additionally, the employee did not possess a completed HBO (higher professional education) degree or NEVI certification. In early March 2022, both parties discussed the limited possibilities for new placements and the need for the employee to seek external employment opportunities. The employee understood the situation at that time and cooperated in seeking an external placement. When this effort also failed, the employer expressed the desire to terminate the employment contract with the employee on November 9, after which the employee was relieved from duties to search for alternative employment.

The court found the employer's arguments compelling and concluded that the employee had almost no chance of finding a new placement. The list of rejections and the lack of suitable assignments demonstrated that the employee was, in fact, unemployable. As a result, the reason for the termination was the employee's personal circumstances, not the position itself. Therefore, the court granted the employer's request to terminate the employment contract on the "h-ground."

As a result of the termination, the court determined that the employee is entitled to a gross transit compensation of €13,414.43. The court saw no reason to award additional compensations.

This case serves as an important reminder for employers and employees about the implications of unemployability and the potential consequences for terminating employment contracts.

Link to the ruling: https://uitspraken.rechtspraak.nl/#!/details?id=ECLI:NL:RBAMS:2023:4548

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