Dismissing an employee: rules, notice and pitfalls

When can you dismiss an employee?

As an employer, you can as a rule dismiss an employee, but the dismissal must be fairly justified. For salaried employees, the fairness requirement applies once the employee has at least 1 year's service (section 2 b of the Salaried Employees Act).

A dismissal can be fair if it is justified by:

• The business's circumstances: cutbacks, restructuring or a fall in orders
• The employee's circumstances: poor performance, cooperation difficulties or absence
• Sickness: long-term or frequent sickness (subject to the special protection rules)

Notice periods

Salaried employees

The employer's notice period follows the Salaried Employees Act and rises with length of service from 1 to 6 months. The employee's own notice is as a rule 1 month.

Hourly-paid and other non-salaried employees

For non-salaried employees, the notice depends on the employment contract and any collective agreement. Without another agreement, there is no statutory deadline.

Dismissal during probation

If a probation period is agreed (at most 3 months for salaried employees), both parties can terminate with 14 days' notice during the probation period.

Formal requirements for the dismissal

• The dismissal should always be in writing; an oral dismissal is valid but hard to prove
• State the date of dismissal and the date of leaving
• Salaried employees can request a written reason
• Send the dismissal so you can document receipt (email with confirmation, registered post or personal delivery with a witness)

Garden leave and suspension

Garden leave

The employee is released from the duty to work but is still employed and receives pay during the notice period. An employee on garden leave may take other work, but the pay from it can under the rules be offset against the pay the employer must pay. For salaried employees there is, however, a minimum compensation, so the pay from the new work is not offset in the first months.

Suspension

The employee is temporarily released from attending work while a matter is investigated but must remain available. Pay is typically maintained. Used less often than garden leave.

Unfair dismissal

If the dismissal is assessed as unfair, the employee may be entitled to compensation:

• Section 2 b of the Salaried Employees Act: compensation for an unfair dismissal (requires at least 1 year's service), the size of which depends on the length of service and the circumstances
• The Equal Treatment Act: compensation for discrimination on the grounds of pregnancy, leave or sex, which can be substantial
• The Anti-Discrimination Act: covers, among other things, age, disability and religion

Specially protected employees

Be aware of employees with special protection:

• Pregnant employees and those on leave: a reversed burden of proof
• Staff representatives: can only be dismissed on compelling grounds
• Working-environment representatives: the same protection as staff representatives
• Employees who have notified holiday: can be dismissed, but the holiday must be respected

Dismissal checklist

• Confirm that the dismissal is fairly justified
• Calculate the correct notice period
• Prepare a written dismissal with correct dates
• Consider whether the employee should be on garden leave or work during the notice period
• Check for special protection (leave, staff representative)
• Remember any severance pay (at at least 12 or 17 years' service for salaried employees)

Conclusion

A correct dismissal requires a fair reason, the right notice and good documentation. Pay particular attention to the protected groups and to severance pay for long service. If in doubt, seek employment-law advice before you act.

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The content of this article is for guidance only and does not constitute legal advice. Consult an employment lawyer for advice on your specific situation.