Suspensioun an inaktiven Status: Bezuelung, Rechter an Enquête

Suspension (schorsing) and non-active status (op non-actief stelling) mean that your employer temporarily bars you from working, usually while an incident is investigated. Your employment contract continues and, under Article 7:628 of the Dutch Civil Code (BW), your salary as a rule continues too; the exception is a situation where not working should reasonably be for your own account.

An employer needs a serious reason, must keep the measure proportionate and must end it as soon as the investigation allows. Below we explain when suspension is allowed, what a careful investigation requires, what happens to your pay, and what you can do if you disagree.

What is the difference between suspension and non-active status?

Legally, there is hardly any difference: in both cases you are temporarily not allowed to work, while the employment contract under Book 7 of the Civil Code stays in force. In practice, suspension is often presented as a disciplinary measure and non-active status as a neutral, organisational measure.

The basis can be the Aarbechtskontrakt, a collective labour agreement (cao) or a staff handbook. Many cao’s set a maximum duration or a procedure, such as a written decision and a hearing within a set number of days. Without such a clause, suspension is still possible, but the employer must then explain particularly well why the measure is necessary.

The measure can also follow from the employer’s right to give instructions under Article 7:660 BW. Whatever the label, the employer remains bound by the duty to act as a good employer under Article 7:611 BW.

Wéini kann en Employeur en Employé suspendéieren?

Only with a compelling reason and only if a lighter measure is not enough. Typical reasons are a serious suspicion of fraud, theft, an integrity breach, transgressive behaviour or an escalated conflict that makes continued work temporarily irresponsible.

The requirement of proportionality follows from the good-employer standard in Article 7:611 BW. The employer must first consider alternatives, such as temporary other duties, working from home or limiting access to systems. The measure must be temporary and tied to a clear purpose, such as an investigation or restoring calm.

The employer should confirm the suspension in writing within days: the reason, start date, expected duration, whether you may contact colleagues or clients, and how you return company property. A vague letter without a reason makes the measure harder to defend before the subdistrict court (kantonrechter).

What does a careful investigation require?

The investigation must be prompt, thorough and fair, with a real opportunity for you to respond to every allegation. A sloppy or one-sided investigation weakens any later step, including a dismissal.

In practice, a careful investigation means:

• Hearing both sides: you receive the allegations and the underlying evidence and can respond before conclusions are drawn.
• Fact-finding: witnesses are interviewed, documents secured, and conclusions follow from the facts rather than from the initial suspicion.
• Geschwindegkeet: the investigation takes weeks, not months, because the suspension may not last longer than necessary.
• Records: interviews are recorded in minutes that the person interviewed can check and correct.
• Privatsphär: personal data are processed within the limits of the General Data Protection Regulation (AVG/GDPR), and colleagues are told no more than they need to know.

Speed matters especially if the employer considers summary dismissal. Under Article 7:677 BW, summary dismissal must follow “onverwijld”, promptly, once the urgent reason is established. Courts accept a reasonable period for a careful investigation, but an employer who lets the matter drift risks losing that ground.

Do you keep your salary during suspension?

Yes, in the great majority of cases. Under Article 7:628 BW the employer must pay the agreed wage when the work is not performed, unless the reason should reasonably be for the employee’s account.

Because it is the employer who decides that you may not work, the reason lies in the employer’s sphere. That stays the case even if the suspicion later proves well founded. Withholding pay for the duration of an investigation is therefore rarely defensible.

If the employer stops paying anyway, you can claim the arrears. Under Article 7:625 BW, wages that are paid late also carry a statutory increase (wettelijke verhoging) of up to 50%, which the court can moderate. Statutory interest comes on top.

What can you do if you disagree with the suspension?

Object in writing straight away and state that you remain available for work. That written record matters later in any dispute about pay, reinstatement or dismissal.

If the measure is unjustified, disproportionate or drags on, you can start interim relief proceedings (kort geding) under Article 254 of the Dutch Code of Civil Procedure (Rv). In employment cases the subdistrict court hears these as the interim relief judge. You can ask for an order to readmit you to work and to pay any wages withheld.

A suspension does not automatically lead to dismissal. The investigation can end without consequences, with a warning, or with a dismissal procedure. An ill-founded or needlessly public suspension can breach Article 7:611 BW, which can weigh against the employer in a later dismissal case or a claim for compensation. For an example of how a court weighs these points, see our case note on Suspensioun no enger Integritéitsuntersuchung.

Wat sollt Dir als Mataarbechter kontrolléieren?

• Does the letter state a concrete reason, a start date and an expected duration?
• Does your employment contract, cao or staff handbook contain a suspension clause with a maximum duration or procedure?
• Is your salary, including allowances, still paid on the usual date?
• Have you received the allegations and evidence, and a date to give your side?
• Have you confirmed in writing that you object and remain available for work?
• Do the interview minutes reflect what you actually said?

Wat sollt Dir als Patron kontrolléieren?

• Is there a compelling reason, and have you recorded why a lighter measure is not enough?
• Have you confirmed the suspension in writing with reason, start date and expected duration?
• Do you follow any procedure in the cao or staff handbook?
• Does salary payment continue under Article 7:628 BW?
• Is the investigation planned in weeks, with a hearing of the employee and minutes of every interview?
• If summary dismissal is an option, can you show that you acted promptly under Article 7:677 BW?

What can we do for you with suspension or non-active status?

eis Beschäftegung Affekote advise employees and employers at every stage of a suspension.

• We assess the suspension letter and the contract, cao or staff handbook clauses that apply.
• We draft the written objection or, for employers, the suspension decision.
• We prepare you for the hearing and review the interview minutes.
• We calculate wage arrears, the statutory increase and statutory interest.
• We set up or review the internal investigation.
• We start or defend interim relief proceedings before the subdistrict court.

Resumé

• Suspension and non-active status bar you from working temporarily; the employment contract continues.
• Salary continues as a rule under Article 7:628 BW, also if the suspicion proves well founded.
• The employer needs a compelling reason, a proportionate measure and a prompt, careful investigation.
• Object in writing and state that you remain available; interim relief proceedings are possible if the measure is unjustified.
• Suspension does not automatically mean dismissal.

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