This judgment provides us with some important lessons:
- A demotion cannot be upheld easily. The courts will test the demotion against the criteria from Stoof/Mammoet. Before an employer decides to proceed to a demotion, the employee should have been given the opportunity to go through an improvement plan.
- Océ had mentioned important points of criticism in its periodic appraisals. However, these points were not reflected in the overall conclusion and no action had been taken on these points. The judgment underlines the importance of appraisals, but not only as paper tigers. Both the employer and the employee should actively work on the points of improvement that are mentioned in an appraisal.
- Demotion is not impossible. It should, however, be very carefully prepared and carried out. The test used in this case by the Court of Appeal, is effectively the same test that would be used for a dismissal: was the employee performing poorly and had the employee been given the opportunity to improve?
André Beukes is an EU Management Consultant to international companies doing business in Europe. He provides clients with practical business support that makes a real difference doing business in the EU. “Put simply, I am here to help you meet your challenges. I believe in the importance of doing things correctly, meaning risks are reduced and problems are avoided.”