Suspension, or schorsing, and non-active status, or op non-actief stellen, are temporary measures by which a Dutch employer bars an employee from performing work, usually while an incident is investigated. Neither measure ends the employment contract, and neither as a rule stops the salary: because it is the employer who decides that the work is not performed, the wage remains due under article 7:628 of the Dutch Civil Code. The employer needs a serious reason, must keep the measure proportionate and must not let it run longer than the investigation requires. What follows sets out when suspension is permitted, what a careful investigation demands, and what rights an employee keeps in the meantime.
What is suspension or non-active status?
In practice, the terms suspension and non-active status are often used interchangeably. In both cases the employee is temporarily excluded from performing work. Sometimes a suspension is seen as a disciplinary measure and non-active status as a neutral organisational measure, but in essence it always comes down to the same thing: the employee is temporarily not allowed to work.
An employer can sometimes base this measure on the employment contract, a collective labour agreement or a staff handbook. If no such arrangement exists, that does not automatically mean suspension is impossible. However, the employer must then be able to explain particularly well why the measure is necessary and reasonable.
When may an employer suspend an employee?
An employer may not suspend an employee without good reason. A compelling reason must exist. Think, for example, of a serious suspicion of fraud, transgressive behaviour, an integrity issue or an escalation in the workplace that makes continued work temporarily irresponsible.
In addition, suspension must be proportionate. This means it must first be considered whether a lighter measure is possible. The employer must also act carefully, weigh the interests of the employee and not let the measure last longer than necessary. It is wise to always confirm a suspension in writing, including the reason, start date, expected duration and practical arrangements.
Investigation after suspension: which requirements apply?
A suspension is often followed by an internal investigation. Such an investigation after non-active status or suspension must proceed carefully, especially because the outcome can have major consequences. In some cases the investigation may ultimately lead to dismissal, but this is not necessarily the case.
A few points are important here:
- Right to be heard: the employee must be given a fair chance to respond to the allegations.
- Careful fact-finding: the employer must investigate the facts thoroughly and must not draw conclusions too quickly.
- Promptness: an investigation must not take unnecessarily long.
- Documentation: conversations, findings and decisions must be properly recorded.
- Privacy and confidentiality: information must be handled with care.
A sloppy or one-sided investigation can weaken the employer’s position and lead to disputes about the lawfulness of the suspension or the follow-up steps.
Pay during suspension or non-active status
Do you keep your right to pay during a suspension? In the great majority of cases, yes. Under article 7:628 of the Dutch Civil Code the employer owes the agreed wage even where the work is not performed, unless the reason for not working should reasonably be borne by the employee. A decision by the employer to keep someone away from the workplace falls squarely within the employer sphere, and settled case law treats it that way even where the suspicion that prompted the measure later proves well founded. Withholding pay for the duration of an investigation is therefore rarely defensible.
For employers, this is an important point of attention. Suspension without continued payment is usually difficult to sustain in practice. For employees, an unjustified suspension of pay often means they can claim payment of the arrears in wages.
Employee rights during suspension
An employee has various rights during suspension or non-active status. Anyone who disagrees with the measure is wise to object quickly in writing and to make clear that they remain available for work. This can be important if a dispute later arises about pay, returning to work or further measures.
Moreover, a suspension of an employee does not automatically lead to dismissal. Sometimes the investigation ends without consequences, sometimes a warning follows and sometimes a dismissal procedure is started after all. That is precisely why it is important to act carefully from the very first moment and to seek legal advice.
If the measure is disproportionate or drags on, an employee can ask the court in interim relief proceedings, or kort geding, to order reinstatement in the job and payment of any wages withheld. An employer should keep in mind that an ill-founded or needlessly public suspension can amount to a breach of good employment practice under article 7:611 of the Civil Code, which tends to weigh against it later in a dismissal case or in a claim for compensation.
Frequently asked questions about suspension and non-active status
Can an employer suspend me just like that?
No, an employer may not suspend an employee without good reason. There must be a sound and compelling reason, and the measure must be careful and proportionate.
Am I entitled to pay during suspension?
Yes, in most cases your salary simply continues to be paid during a suspension or being placed on non-active status.
How long may a suspension last?
A suspension may not last longer than necessary. The measure must be temporary and tied to a clear purpose, such as an investigation or restoring calm.
Must I be heard during the investigation?
Yes, the employee must be given the opportunity to respond to accusations or allegations.
Does suspension always lead to dismissal?
No, suspension does not automatically mean dismissal. It can also end without any further measure.
For a worked example of how a court weighs this, see our case note on suspension after an integrity investigation.
When a suspension is applied carefully
A suspension or non-active status is a serious measure that must be applied carefully. For employers, it is important to have a clear reason, to record the measure properly and to carry out a careful investigation. For employees, it is important to respond quickly, to object if necessary and to safeguard their rights.
Are you dealing with a suspension at work, the non-active status of an employee or an investigation following a labour dispute? The employment law team at Law & More advises both employers and employees on the lawfulness of the measure, on pay during the investigation and on the steps that follow it. Get in touch to have your position assessed before the next move is made.
