The consequential effect of the prohibition on termination of employment during an employee’s illness
Article 7:669 of the Dutch Civil Code stipulates that an employer can terminate an employment agreement if it has reasonable grounds for doing so. An exhaustive list of these grounds is contained in subsection 3 and – in summary – consists of:
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.
Article 7:670 of the Dutch Civil Code stipulates that an employer cannot terminate an employment agreement while the employee is ill. This is the so-called prohibition on termination of employment due to an employee’s illness. Termination is possible if the occupational disability has lasted longer than two years.
But what if an employee is ill, but a reason other than that illness is behind the request for setting aside the employment agreement?
Subdistrict Court of Zwolle, 11 October 2012, LJN BY0583
This was the case in the decision of the subdistrict court of Zwolle of 11 October 2012. The employer requested that the employment agreement be set aside as the employee’s performance was grossly inadequate. The employer argued that this request for setting aside the employment agreement was not related to the prohibition on termination of employment during an employee’s illness, even though the employee was ill at the time.
Legal framework
In cases like this, the subdistrict court must first determine whether there are grounds for termination, such as d) unsatisfactory performance, e) imputable acts or omissions on the part of the employee or g) damaged working relationship. If one of these grounds is involved, the subdistrict court must subsequently determine whether the request for setting aside the employment agreement was made in connection with the occupational disability of the employee.
Grounds for setting aside: unsatisfactory performance
In June 2010, the employer met with the employee to discuss his performance as a financial director. It was decided to have the employee go through a coaching process, and the employee even drew up a list of points for improvement himself. On 20 June 2011, the employer informed the employee that it was still dissatisfied with his performance. Concrete shortcomings were listed, and it was determined that continued coaching would be required. The director took it upon himself to coach the employee.
On 26 April 2012, there was an incident. The employer was unable to make payments, as the credit limit had been exceeded. This came as a complete surprise to the other board members. This was the employee’s responsibility. The incident was a serious mistake on the part of the employee, as it was an embarrassment to the management and it damaged the employer’s reputation as a solvent and solid company.
In addition, statements from the fellow board members were submitted. The picture these paint of the employee is that he was no longer fit for the position and things could not continue the way they were.
The subdistrict court considered it likely that the employee’s performance had been substandard for some time.
Connection between the setting aside and occupational disability
It then had to be determined whether the request for setting aside the employment agreement was made in connection with the employee’s occupational disability.
It is not in dispute that the employee has Parkinson’s disease The company physician examined the employee on 3 May 2012, and found him to be fully unfit for work. Given the chronic nature of Parkinson’s disease, the occupational disability of the employee is almost certain to have set in before 3 May 2012.
The company physician has drawn up a problem analysis, outlining the employee’s limitations: limited ability to concentrate and divide his attention, very limited memory and a limited ability to act independently.
The shortcomings that, according to their statements, his fellow board members noticed in the employee, are in line with the limitations as described by the company physician, which, in fact, completely explain the problems.
In addition to that, the report of the potential analysis of 1 September 2011 describes the employee as a competitive person, who is ambitious, strives to perform to the best of his ability, and was fully fit for his position. This is an indication that the employee was sufficiently capable of performing his duties, and that his unsatisfactory performance had to be due to the fact that, due to his illness, he had become less and less able to make full use of his capabilities.
For the subdistrict court, the above was sufficient reason to find that the shortcomings in the employee’s performance were due to his illness. Therefore, the prohibition on termination of employment during an employee’s illness was deemed to have consequential effect, as those shortcomings were the grounds for the request for setting aside the employment agreement.
Conclusion
Once again, this decision shows that a request to set aside an employment agreement may have nothing to do with the prohibition on termination of employment during an employee’s illness. In cases in which the employee is ill, the subdistrict court will be reluctant to set aside an employment agreement.
Information
If you require further information in connection with this article, you can contact Mieke Bestebreurtje.
