Dismissal Due to Illness in The Netherlands
Dismissal due to illness is a delicate issue. If you have a long-term illness, your employer is generally prohibited from issuing a notice of termination during the first two years of your illness. This means you cannot be simply fired during this period. However, this doesn’t prevent some employers from attempting to do so. Additionally, there are several exceptions to the termination prohibition, which, under certain circumstances, allow employers to dismiss sick employees.
Regrettably, it’s common for some employers to exhaust all means to dismiss a sick employee. The negative atmosphere this creates might lead you to consider agreeing to the dismissal. The stress generated in such situations can be overwhelming, particularly when you are already ill and need your energy for recovery. Nonetheless, it is usually advisable not to hastily accept dismissal during illness; as a sick employee, you hold a strong legal position.
Strong Dismissal Protection
Our legal system in the Netherlands provides robust protection against dismissal in cases of illness. As a sick employee, you cannot be dismissed arbitrarily. However, there are specific rules associated with this protection that you, as a sick employee, must follow. For instance, you are expected to actively participate in your own reintegration. An action plan will be developed in consultation with the company doctor. You are obligated to contribute your best efforts in both formulating and assessing this plan, and to engage in reintegration activities as soon as feasibly possible.
Additionally, you should be ready to perform suitable work during your illness. This means that if your health permits, you should undertake tasks assigned by the company doctor or your employer that are relevant to your reintegration process. It’s important to understand that only the company doctor is qualified to evaluate your health condition. Therefore, your employer is not in a position to determine whether you are capable of working or not.
Exceptions to the Termination Prohibition
Under the termination prohibition, your employer is not allowed to terminate your employment contract during the first two years of your illness. However, there are several exceptions to this rule. For instance, the prohibition does not apply if your employer can prove that you are not cooperating with your reintegration or if you refuse to perform suitable tasks during your illness, despite being medically capable according to the company doctor. Additionally, the prohibition of termination does not apply in cases where the company is facing bankruptcy.
Furthermore, your employer may dismiss you during your illness due to a reorganization, the elimination of your position, or the divestment of certain business activities. In these situations, your employer must demonstrate that your dismissal is based on business reasons and not due to your illness.
If you fall ill during your probationary period, it may be easier for your employer to terminate your employment, though your illness should not be the primary reason for dismissal. Lastly, you can be dismissed during illness for culpable behavior. This includes actions such as committing theft or fraud, or involvement in assault or sexual harassment. In such cases, there is an urgent cause for dismissal, allowing your employer to immediately terminate your employment, even during your illness..
After Two Years of Illness
The prohibition on termination, which safeguards you as an employee from dismissal during illness, is effective for two years. This means that your employer may apply for your dismissal through the UWV two years after the onset of your illness. If the UWV approves this dismissal application, your employer is then permitted to terminate your contract. In reviewing the dismissal application, the UWV will assess whether your employer has fulfilled their obligation to make a concerted effort towards your reintegration. Just as you are required to participate in your reintegration, your employer is also obligated to actively contribute to this process. Should your employer fail to meet these obligations, the UWV may impose sanctions.
Part of the employer’s responsibility in this regard includes the creation of an action plan for your reintegration. This plan should be developed within eight weeks of your initial sick report.
Signing a Settlement Agreement During Illness
Unfortunately, it’s not uncommon for employers to find managing a sick employee challenging and, as a result, attempt to terminate their employment, despite the existing prohibition on dismissing sick employees. This prohibition does not apply if you voluntarily agree to your own dismissal. Consequently, it’s fairly common for employers to seek termination through mutual consent.
In such instances, your employer might present you with a settlement agreement. This agreement outlines the terms for ending your employment and the conditions under which it occurs.
Deciding whether to sign a settlement agreement during your illness largely depends on your individual circumstances. Consider whether this is merely an attempt by your employer to dismiss you, or if you genuinely do not wish to return to this employer, possibly due to work-related stress contributing to your illness. In cases where returning to work is not feasible, agreeing to a settlement might be beneficial, provided that the agreement includes the appropriate legal terms and conditions.
Don’t Just Sign!
Agreeing to a settlement agreement for your dismissal can significantly impact important aspects such as your sickness or unemployment benefits. Therefore, if your employer offers you a settlement agreement, it’s crucial to have it reviewed by an employment lawyer who is well-versed in the complex laws surrounding dismissal during illness.
Signing a settlement agreement that contains errors or fails to meet certain conditions can place you at a considerable disadvantage. For instance, one potential outcome of signing a settlement agreement is being marked as recovered in official records. This change in status could lead to the termination of your sickness benefits and shift you to unemployment benefits, which typically come with the requirement to actively seek employment. This situation is far from ideal if you are still ill, potentially exacerbating your difficulties. Therefore, it’s essential not to hastily sign any settlement agreement, but rather to ensure it is thoroughly reviewed by a competent lawyer.
Complex Legal Rules
The laws governing illness and dismissal are intricate, necessitating specialized legal expertise to properly manage your situation if you face dismissal during illness. It’s not always advisable to sign a settlement agreement, even if your employer urges you to do so. Both you and your employer have responsibilities concerning your reintegration process while you are ill.
Are you concerned that your employer is failing to fulfill their obligations? Are you considering legal action after being unfairly dismissed during your illness? Or do you need guidance and advice in reviewing a settlement agreement? If so, we warmly invite you to contact us. Our team is equipped to assist you in navigating these challenging and complex circumstances.