On the last day of the year, we would like to take you through a case in which the court ruled at the end of November on the right of a (statutory) director to be consulted and heard in the event of dismissal. A statutory director was dismissed and took the position that her right to be heard prior to the dismissal decision and to have an advisory vote had been violated. What was the court's opinion on this?

Facts

In this case, the person concerned was both a statutory director and an employee. The employment contract was due to end on 1 January 2026, regardless of any dismissal.

On 25 April 2025, she informed a fellow director that she would be taking up a new position elsewhere at the beginning of 2026. The next day, she was suspended from her duties.

Among other things, she was denied access to systems and had to return her company car. The suspension was not announced in advance, nor was it justified by specific allegations or incidents.

On 20 May 2025, the general meeting of shareholders decided to dismiss her as statutory director.

Shortly afterwards, her employment contract was also terminated with effect from 1 July 2025. The director took the position that the dismissal decision under company law was invalid because she had not been given the opportunity to give her opinion and had not (actually) been heard.

She therefore requested the court to annul the dismissal decision.

Legal framework

In its ruling, the court stated that the corporate law framework is leading for the dismissal of a statutory director.

Under the law, a director must be given the opportunity to give advice on the proposed decision prior to a dismissal decision and must also be heard.

These rights are intended to ensure that the general meeting can take note of the director's opinion and take that opinion into account in its decision-making.

Assessment by the court

The court considered it decisive that the actual course of events showed that the decision to dismiss had in fact already been taken before the general meeting was convened.

According to the court, the suspension, the immediate withdrawal of facilities and the manner in which the dismissal was subsequently prepared made it clear that the outcome was no longer open to discussion.

Against this background, the court considered that the director's advice could no longer have any real significance. This also meant that there was no real right to be heard.

The court emphasised that merely offering a formal opportunity to respond is insufficient when the decision-making process has already been “locked down”. The right to give advice and be heard then loses its function. This constitutes a violation of the legal provisions governing the dismissal of directors.

Judgment

Because the court found that the dismissal decision under company law had been taken in violation of the right to be consulted and heard, it granted the director's request and annulled the dismissal decision.

The fact that the employment contract was due to end shortly and that the director had already found a new job did not alter this, according to the court.

You can read the ruling here.

Conclusion

This ruling confirms once again that great care is required when dismissing a statutory director. Employers and shareholders would do well to realise that the right to be consulted and heard are not formalities that can simply be “ticked off”.

As soon as the impression arises that the decision has already been made, the company runs the risk that the dismissal decision will not stand, with all the legal and financial consequences that this entails.

It is therefore advisable – both for statutory directors and for employers/shareholders – to seek sound advice on employment and company law in good time. The employment and company law solicitors at SPEE advocaten & mediation are happy to assist you.