Based on employment law, an employer may not cancel an employee’s employment agreement during the first two years that an employee is ill. However, it’s often said that this is not so much a ban on firing someone “during” his disability, but about a ban on firing him “because of” his illness. So there are exceptions to this ban on dismissal during illness. Should there be a compelling reason to dissolve the employment agreement and this reason is not related to the employee’s illness, then the district court will usually proceed nonetheless to dissolve the employment agreement. In this manner, dismissal due to a reorganisation or to non-cooperation with reintegration obligations may well be possible if an employee is ill. If the employee becomes ill after the employer has requested a permit for dismissal from the UWV or after the employer has lodged a request for dissolution with the district court, then the illness was not the reason for dismissal and the employee can be dismissed.
Dismissal due to illness is sometimes possible, but there is no golden rule. Under certain circumstances, an employment agreement can be terminated nonetheless due to a cause related directly to the employee’s illness. This may exist, for example, if the employee is sick regularly. For example, the District Court in Zwolle found in 2009 that an employment agreement must end if the employer’s employment law attorney can demonstrate that an employee’s absence due to illness has such severe consequences for its production and operational processes that – when the other circumstances of the case such as the frequency and duration of the absence due to illness, its cause and probability of cure are also taken into account – the employment agreement must be terminated on the basis of employment law. The court shall also have the situation in which the employer gets into financial problems due to the employee’s illness carry some weight in its decision as to whether the employment agreement must be dissolved.
If an employee has been ill for two or more years without respite, then the ban on cancellation during illness no longer applies. The employment does not then automatically end of itself, but the employer can then effectuate the dismissal more easily. For this, the employer must submit a request to the UWV and must make it plausible that the employee will not recover within 26 weeks and that no other suitable work activities will become available within the company by means of training or other support. The employer must demonstrate that he has met his reintegration obligations with respect to the employee and has therefore done everything possible to help the employee get better.
The lawyer specialising in employment law at AMS Advocaten in Amsterdam has considerable experience handling situations involving dismissal during illness. AMS Advocaten assist both employers and employees in such matters. Should you face such questions, the lawyer specialising in employment law at AMS Advocaten can provide you with recommendations.