Can you dismiss a ‘benchwarmer’?

This often refers to an employee employed by a staffing agency who needs to be placed with clients of that agency. If no assignments can be found for an extended period, the employee quickly finds themselves on the “reserve bench.” Employers often want to part ways with these employees. But is this permissible on this ground?

Legal framework

Case law indicates that a staffing agency is not obligated to retain a benchwarming employee indefinitely. If an employee cannot be assigned to a project for too long, this can constitute a valid ground for dismissal.

Has the role become redundant?

In the Netherlands, you must have a valid reason for dismissing employees. What grounds apply to a benchwarmer? An employer may argue that there is a business economic necessity for dismissal. A ruling from the court Rotterdam court indicates that an employee’s position can become redundant due to economic circumstances, especially if the employee has been unable to be placed for an extended period and is thus on the reserve bench longer than average. In one case, an employee had only worked on a project for 8 months out of the last 55 months. The court ruled that it was economically irresponsible to allow this situation to continue.

The UWV has previously ruled that the job position had not structurally become redundant. They believed that the inability to find a suitable match for the employee does not mean that their position has permanently disappeared.

Limits to entrepreneurial risk

Having an employee on the bench, who is not placed on a project but still needs to be paid, poses a risk for the employer. However, the court has indicated that there is a limit to this risk. If there is no limit, unacceptable consequences may arise, and the employment of an unplaceable employee could last unreasonably long. This limit is influenced by the time the employee spends on the reserve bench, among other circumstances.

This means that it is crucial for the employer to actively seek opportunities for the employee by presenting them multiple times to potential clients. Additionally, the employer should provide training and support to help optimize the employee’s CV.

Conclusion

Employers are not indefinitely obligated to keep a benchwarmer on their payroll. When an employee cannot be placed for an extended period, this can lead to a valid ground for dismissal. It is important for employers to actively assist the employee in finding a new assignment. If they fail to do so, they may face difficulties in the long run.

Meer informatie

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