Dismissal due to illness
Dismissal due to illness is a precarious matter. If you are ill for a long time, your employer will in principle be prohibited from giving notice during the first two years of your illness. This means that you cannot simply be fired during this period, but of course this does not mean that your employer cannot simply try it anyway. In addition, there are a number of exceptions to the prohibition on termination, which in certain cases allow employers to fire sick employees.
Unfortunately, practice shows that some employers will do everything they can to get rid of a sick employee. Due to the negative atmosphere that this creates, you may be inclined to simply agree to the dismissal. After all, the stress that such a situation produces is very annoying, especially if you are already ill and need your energy for your recovery. Nevertheless, in most cases it is advisable not to just accept dismissal during illness; you have a strong legal position as a sick employee.
Strong dismissal protection
Our legal system has a high degree of dismissal protection in the event of illness. As a sick employee you can therefore not just be dismissed. A number of rules do apply to this protection, which you must adhere to as a sick employee. For example, you are expected to cooperate in your own reintegration. An action plan will be drawn up in consultation with the company doctor. You have a best-efforts obligation to cooperate in drawing up and evaluating this plan and to cooperate in reintegration as soon as possible.
You must also be prepared to perform suitable work during your illness. This means that, if you are able to do so in terms of health, you carry out tasks on behalf of the company doctor or your employer that are appropriate in your reintegration process. Please note that only the company doctor can assess your state of health. Your employer cannot therefore determine whether or not you are able to work.
Exceptions to the cancellation ban
Under the prohibition of termination, your employer may not terminate your employment contract during the first two years of your illness. There are, however, a number of exceptions to this. For example, the prohibition on termination does not apply if the employer can demonstrate that you are not cooperating with your reintegration or if you refuse to perform suitable tasks during your illness, while according to the company doctor you are capable of doing so. Even if the company is faced with bankruptcy, the prohibition of termination is not valid.
In addition, your employer may sometimes fire you during illness due to a reorganisation, due to the termination of your position or due to the divestment of certain business activities. Your employer will have to be able to demonstrate that you will not be dismissed because of your illness, but for business reasons.
If you become ill during your probationary period, it will also be easier for your employer to fire you, although your illness should never be the reason for the dismissal. Finally, you can be dismissed during illness if you acted culpably. This means that, for example, you have committed theft or fraud or that you have been involved in assault or sexual harassment. In such a case, there is an urgent reason for dismissal. Your employer may then immediately dismiss you, even during your illness.
After two years of illness
The prohibition on termination, which protects you as an employee against dismissal during illness, is valid for two years. This means that your employer may request your dismissal from the UWV two years after you became ill. If the UWV subsequently approves this application for dismissal, your employer may terminate your contract. When applying for dismissal, the UWV will check whether the employer has complied with its best efforts obligation with regard to your reintegration. Just like you, your employer also has a duty to actively participate in your reintegration. If your employer does not do this, the UWV can impose a sanction.
The employer’s best efforts obligations include drawing up an action plan for your reintegration. Your employer must have this drawn up within eight weeks of your sick report.
Sign a settlement agreement during illness
Unfortunately, it is not uncommon for employers to find a sick employee difficult and therefore try to fire you, despite the prohibition on termination for sick employees. This prohibition of termination does not apply if you agree to your dismissal yourself. It therefore regularly happens that employers try to fire you by mutual consent.
If this is the case, your employer will offer you a settlement agreement. This agreement contains agreements about terminating your employment contract and the conditions under which this happens.
Whether it is wise to sign a settlement agreement during your illness largely depends on your personal situation. Is this just an attempt by your employer to get rid of you or do you really not want to go back to this employer yourself? For example, because your illness is caused by tensions at work, which are not easy to remedy. In that case, a settlement agreement may be a good idea, provided the correct legal conditions are included.
Don’t just sign
If you agree to your dismissal by means of a settlement agreement, the provisions laid down in the agreement can have major consequences, for example for your sickness benefit or your unemployment benefit. If your employer offers you a settlement agreement, it is therefore very important to have it checked by a lawyer who understands the complex legislation surrounding dismissal during illness.
If the settlement agreement contains errors or if certain conditions are not met, you can put yourself at a significant disadvantage by signing this agreement. For example, the consequence of a settlement agreement may be that you will be recorded in the books as better reported. This means that your sickness benefit will lapse and you will end up with unemployment benefits, with the accompanying obligation to apply for a job. And that is not desirable when you are still ill, so that you go from bad to worse. So never just sign a settlement agreement, but have it checked thoroughly by a lawyer.
Complex legal rules
The law surrounding illness and dismissal is complex and it therefore requires specialist legal knowledge to properly arrange your affairs if you are faced with dismissal during illness. It is certainly not always recommended to sign a settlement agreement, even if your employer may insist. Both you and your employer have obligations regarding your reintegration process during your illness.
Do you feel that your employer is not meeting its obligations? Do you want to take legal action after your employer unfairly fired you during your illness? Or do you need help and advice when checking a settlement agreement? Then we cordially invite you to contact us, so that we can assist you in this annoying and complex situation.