Dismissal During Sick Leave – What is the perception – and the law?

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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? 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.

Prohibition of Termination During Sick Leave
The core principle is that employers cannot dismiss employees during sick leave or long-term incapacity for work. This regulation underscores the employer’s responsibility for the reintegration of sick employees, ideally by facilitating their return to their original workplace.

It is generally prohibited to dismiss an employee who is on sick leave. However, there are specific exceptions to this rule, and even exceptions to those exceptions, which create a complex legal landscape. Employers must navigate these regulations carefully to ensure compliance and avoid potential legal pitfalls.

Exceptions to the Prohibition of Termination

The prohibition of termination does not apply in the following situations:

  1. Two Years of Incapacity: An employee may be dismissed after two years of incapacity for work, regardless of whether these two years are consecutive. Interruptions longer than four weeks reset the count. Pregnancy and maternity leave are excluded from this calculation. If the employee is past state pension age, the prohibition lapses after six weeks of illness.
  2. Non-Compliance with Reintegration Obligations: Employees who refuse to comply with reintegration efforts despite reminders can be dismissed.
  3. Dismissal Permit Preceding Sick Report: If an employee reports sick after the employer has applied for a dismissal permit from the UWV or submitted a dissolution request to the subdistrict court, the prohibition does not apply. Reporting sick on the same day the request is received is still considered as prior to the request, preventing employees from blocking dismissal by reporting sick.
  4. Employee Consent: An employee can be dismissed if they agree to it.
  5. Probationary Period: Termination during the probationary period is allowed.
  6. Company Closure: If the entire company closes, the prohibition does not apply. However, if only a branch or department closes, the employer must attempt to re-integrate the employee elsewhere within the company.
  7. State Pension Age: Employees who have reached state pension age can be dismissed.
  8. Serious Misconduct: Serious reasons for dismissal, such as fraud discovered during sick leave, override the prohibition.

UWV and Prohibition of Termination Due to Sickness
For dismissals based on economic reasons or long-term sickness, employers must request a dismissal permit from the UWV. The UWV is bound by the prohibition of termination. If no exceptions apply, the UWV cannot grant the dismissal permit. Should the UWV refuse, the employer can appeal to the subdistrict court, which must adhere to the same rules.

Subdistrict Court and Prohibition of Termination Due to Sickness
While the subdistrict court generally must follow the prohibition of termination, it has more discretion than the UWV. The court can permit dismissal if:

  1. The reason for termination is unrelated to the prohibition.
  2. The termination serves the employer’s interest.

This flexibility does not extend to dismissals for business economic reasons. Assessing whether the reason for dismissal is unrelated to sickness can be complex, involving questions about the employee’s performance, mental health, conduct, and underlying issues such as alcoholism.

Suspension of salary as a disciplinary measure in the event of illness or refusal to work
In principle, a sick employee is entitled to continued payment of wages, 100 or 70%. This is different if an employee does not comply with the reasonable verification requirements regarding the provision of information during illness. If the sick employee does not cooperate, the employer may, after a warning, suspend payment of wages.

Suspension of salary during illness in The Netherlands
In certain cases a sick employee is no longer entitled to salary at all:

  • if the employee refuses to comply with the reintegration obligations;
  • if he impedes himself in the recovery;
  • if he himself has caused the disability / illness;
  • if he refuses to perform suitable work;
  • if he refuses to cooperate in drawing up/evaluating/ adjusting an action plan.

If the employee still fulfills his obligations, the employer must resume the obligation to pay wages from that moment on.

Conclusion
Navigating the legal landscape of dismissal during sick leave requires a thorough understanding of the exceptions and meticulous adherence to the regulations.

Employers must balance the enforcement of workplace policies with the legal protections afforded to employees on sick leave. By understanding these intricacies, employers can ensure they manage sick leave and potential dismissals lawfully and effectively.

But, bottom line is that an employee could be dismissed in case of unlawfully claiming sick leave and being absent while in a condition to work.