In the first two years of illness, the prohibition on termination applies. In principle, the employment agreement cannot be terminated during that period, not even with a dismissal permit from UWV. However, in some cases, dismissal during an employee’s illness is possible. There are several situations in which the employment can be terminated despite the fact that the employee is ill. A checklist.
Checklist
- Is there an urgent cause for dismissal with immediate effect?
If there is a valid reason for dismissal with immediate effect, dismissal is always possible, including during the employee’s illness.
- Was the dismissal permit applied for and did UWV WERKbedrijf receive the relevant application before the employee reported ill?
If that is the case, the illness does not stand in the way of the dismissal. Therefore, it is advisable to apply for the dismissal permit before discussing the matter with the employee.
- Is the dismissal part of a reorganisation?
Since 1 July 2015, the law on dismissal has changed and the prohibition on dismissal also applies to a dismissal due to reorganisation. This means that, in such case, the employer cannot apply to the subdistrict court to have the employment agreement set aside. As long as the employee is ill, the employment agreement cannot be terminated in connection with a reorganisation.
- Are there other valid reasons for dismissal?
If there are other grounds for the dismissal, such as unsatisfactory performance, a damaged working relationship or an imputable act on the part of the employee, the employer can apply to the subdistrict court to have the employment agreement set aside. However, if the employer wishes to do that, it must be able to substantiate the grounds for dismissal, or the subdistrict court will be unlikely to order the termination. In addition, the grounds for dismissal may not be related to the employee’s illness in any way.
- Is the company discontinuing its business?
In such case, the employment agreement with an ill employee can be terminated after obtaining a dismissal permit from UWV WERKbedrijf.
- Is the ill employee not cooperating in his reintegration?
If the employee refuses suitable alternative work, does not follow reasonable instructions from the employer or the company physician within the framework of his reintegration or does not cooperate in the drawing up, evaluation or amendment of the plan of approach, this can be considered to constitute an imputable act on the part of the employee, which is a ground for dismissal. If a salary-related penalty has already been imposed and the employee continues to refuse to cooperate, the employer can apply to the subdistrict court to have the employment agreement set aside.
Termination
An employment agreement can end in a variety of ways. There must always be a ground for dismissal.
a) dismissal on commercial grounds
b) dismissal of an employee who has been ill for longer than two years
c) regular absenteeism with unacceptable consequences for the business operations
d) unsatisfactory performance
e) imputable acts or omissions on the part of the employee
f) refusal to do a particular job due to conscientious objections
g) damaged working relationship
h) other circumstances due to which the employment agreement cannot be maintained.
If an employee does not agree to a dismissal, the employer can, in the case of ground a) and b), terminate the employment agreement with the permission of UWV WERKbedrijf. If one of the other grounds applies, the subdistrict court can set aside the employment agreement at the request of either party. In this case, it is not considered a termination.
In proceedings to set aside an employment agreement, the subdistrict court will look into whether the employee is ill and if so, whether the request to set aside the employment agreement is related to the illness. Sometimes, the reason behind the request is grossly unsatisfactory performance, or the fact that the working relationship is damaged to such an extent that it may be better for the parties to go their separate ways. If reporting ill was predominantly a strategic move on the part of the employee, the subdistrict court will usually disregard it.
Dismissal with immediate effect
Dismissal with immediate effect is the ultimate sanction, which can only be applied if the employer has urgent cause for that. If there is such an urgent cause, the employee can be dismissed with immediate effect even if he is ill. Examples of this include serious misconduct on the part of the employee, such as a theft that only comes to light after the employee reports ill.
Mutual agreement
Even if the employer and the employee agree that the employment should be terminated, they cannot simply enter into a termination agreement. By agreeing to a termination “without proper grounds” before two years of illness have passed, the employee commits an act prejudicial to a national insurance fund within the meaning of the Dutch Sickness Benefits Act (Ziektewet). As a result, the employee may not receive Sickness Benefit after the dismissal. In such a situation, another form of termination of the employment is possible in some cases. If the employee does not plan to claim Sickness Benefit, termination by mutual agreement is possible as well. This is possible because – provided that other requirements are met – the employee is eligible for Unemployment Benefit.
Conclusion
Dismissal during an employee’s illness is often complicated. In practice, situations are never as black and white as they are in a checklist. It may be useful to see whether a situation can be changed and whether termination is possible.
Further information
For additional information please feel free to contact Mieke Bestebreurtje.
