No dismissal during sick leave

A sick employee may not be dismissed. However, there are exceptions concerning the prohibition of termination. And there are exceptions to these exceptions. What does this mean exactly? This blog gives a brief overview.

It is not allowed to dismiss employees during sick leave or long-term incapacity for work. The background of this regulation is that employers are responsible for the reintegration of sick employees. In principle, the best way to do this is for the employee to return to his or her own workplace.

Exceptions to the prohibition of termination

In certain cases, the prohibition of termination does not apply:

1. After two years of incapacity for work an employee may be dismissed. These two years do not need to be a consecutive period. However, an interruption cannot be longer than four weeks. Pregnancy leave and maternity leave do not count towards the determination of the duration of the incapacity for work. If an employee has already passed the state pension age, the prohibition of termination lapses already after six weeks of illness.
2. If, despite reminders, employees refuse to comply with their re-integration obligations.
3. The employee reported sick after the dismissal permit has been applied for at the UWV or a request for dissolution has been submitted to the subdistrict court. Reporting sick on the same day the UWV or the subdistrict court received the request is still considered prior to the request. This arrangement prevents the employee from blocking his or her dismissal by reporting sick.
4. An employee agrees to the dismissal.
5. The termination takes place during the probationary period.
6. An employer closes the company. In that case, the whole company is concerned and not just the closing of a branch or department. In the latter case, an employer has to try to re-integrate an employee elsewhere in the company.
7. An employee reaches state pension age.
8. There is a serious reason for the dismissal, for example, if, during sick leave, it turns out an employee committed fraud.

UWV and prohibition of termination due to sickness

If you want to dismiss an employee because of business economic reasons or long-term sickness, you will have to request the UWV for a dismissal permit. The UWV has to comply with the prohibition of termination. If an employee is sick and none of the aforementioned exceptions apply, the UWV is not allowed to provide a dismissal permit.

If the UWV refuses to issue the requested permit, an employer can go to the subdistrict court. The subdistrict court has to comply with the same rules when it comes to dismissal due business economic reasons and thus, also strictly follow the prohibition of termination. An employee cannot frustrate this second chance of an employer by reporting sick after the commencement of the UWV procedure, but before the dissolution proceedings. Since a recent judgement of the Supreme Court, the reference date is not the start of the dissolution proceedings, but the start of the UWV procedure.

Subdistrict court and prohibition of termination due to sickness

In principle, the subdistrict court has to adhere to the prohibition of termination due to sickness, but has more leeway than the UWV. The subdistrict court is allowed to dismiss despite the prohibition of termination if:

1. The reason for the termination is not connected with prohibition of termination, or
2. The termination of the employment contract is in the employer’s interest.

Please note, this does not apply when it comes to dismissal due to business economic reasons.

It is not always clear whether the reason for the dismissal is not related to an employee’s sickness. Does the employee not function well because he or she is ill? Is the disturbed employment relationship not caused by mental problems of the employee? And does this not explain his or her unacceptable conduct? Is alcoholism the reason for the employee’s frequent absence? Often, there is no unequivocal answer to these questions.

Employment and dismissal lawyers

Do you have any questions about sick employees? Or do you want us to assist you in a dispute with an employee? Please contact us: