Can You Dismiss an Employee During Detention?

Introduction

When an employee is in custody or serving a prison sentence, the question arises: can the employer terminate the employment contract? Dismissal is not always immediately possible. In this blog, we explain the legal options and the key considerations courts use when assessing dismissal during detention.

Dismissal during pre-trial detention

If an employee is in custody while being investigated for a suspected crime, dismissal is not automatically allowed. Dutch law upholds the principle of presumed innocence until proven guilty. As long as the employee is merely under suspicion, summary dismissal (ontslag op staande voet) is generally not justified.

In such cases, the employer may suspend salary payments, as the employee is unable to perform their duties. This is often the most appropriate initial step.

Dismissal after conviction

When a conviction has been issued and the employee is serving a prison sentence, dismissal may be considered. However, even then, it is not automatically lawful. Courts assess these situations critically.

A well-known case involved a financial employee at ABN AMRO who was convicted of sexual abuse involving his stepson. Despite the seriousness of the offence, the Dutch Supreme Court ruled the summary dismissal invalid. The reason? The crime occurred in the private sphere, did not affect job performance, and caused no direct harm to the employer.

Dismissal through the subdistrict court

If summary dismissal is not viable, employers may submit a termination request to the subdistrict court. The judge will weigh the employer’s and employee’s interests. Key factors include:

  • The length of the detention

  • The nature and severity of the offence

  • The impact on the workplace and business operations

If the offence relates directly to the employee’s work, for example, a driver convicted of DUI, courts are more likely to approve the termination.

No obligation to hold the job open

Case law also confirms that employers are not obliged to keep a job open for an employee who is detained long-term, such as for more than two years. Nevertheless, employers must follow the correct legal procedures to prevent liability.

Conclusion

Dismissal during detention is legally sensitive. A mere suspicion is not enough for immediate dismissal. After conviction, courts assess whether the offence justifies termination based on its impact on the employment relationship. Employers must act carefully to avoid legal missteps and claims.


This blog was written by Mr. Stijn Blom

Employment law attorney at expatlawyer.nl B.V. Stijn has extensive experience in employment law and supports entrepreneurs on a daily basis with a wide range of employment law issues. From dismissal cases to drafting watertight agreements and regulations – with his practical and personal approach, he helps employers and employees move forward. Want to know more? Visit Stijn’s page.

Expatlawyer.nl is happy to think along with you if you have questions about the topic of detention and employment? Feel free to get in touch.

June 2025

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