Dismissal during illness is usually prohibited in the Netherlands. Yet employers sometimes come up with creative ways to dismiss a sick employee. When is that allowed and when not? The employment law lawyers at Arslan Advocaten explain which rules apply, what the exceptions are and how you can protect yourself as an employee.
The legal ban on termination during illness
Article 7:670 paragraph 1 of the Civil Code states that an employer may not dismiss an employee during the first 104 weeks of illness. This is called the termination ban due to illness. The intention is to protect sick employees and make reintegration possible.
During this period, the employer must continue to pay (partially) the wages and work with the employee on recovery and return. An labor conflict or difference of opinion does not change this.
Exceptions to the ban on termination
Nevertheless, there are situations in which dismissal during illness is possible. The law has a limited number of exceptions:
1. Dismissal during probationary period
During the probationary period, an employer may terminate the employment contract at any time, including in the event of illness. This only applies if the trial period has been legally agreed and does not last longer than one month.
2. Dismissal for business economic reasons
In the case of a reorganization or business economic necessity, an employer may sometimes also dismiss sick employees. However, this must be done via the UWV, with proof of financial necessity and a correct transition compensation.
3. Dissolution due to seriously culpable conduct
If an employee seriously misbehaves — for example, commits fraud or structurally refuses to cooperate with reintegration — the employer can do so via subdistrict court summary dismissal or dissolution, even during illness.
4. End of a temporary contract
A temporary contract automatically expires on the agreed end date, even if the employee is ill. The employer does not have to renew the contract, but must pay the transition compensation.
Dismissal during illness in the event of long-term disability
After two years of illness, the termination ban expires. The employer may then, with the permission of the UWV, terminate the employment contract if recovery is not expected in the short term. This is called a dismissal due to long-term disability.
The employee is then entitled to a transition compensation and possibly also to a benefit under the Sickness Benefits Act or the WIA. The UWV strictly assesses whether the employer has done enough to re-integration. If this is not the case, the UWV can impose a wage sanction and the employer must continue to pay for longer.
Reintegration obligations
Both employer and employee have reintegration obligations. The employer must offer suitable work, organize guidance and regularly consult with the company doctor. The employee must cooperate in his recovery and adhere to the action plan. If an employee refuses, this may have consequences for his right to wages or dismissal protection.
Practical example
An employee called in sick due to tensions at work, but refused any contact with the employer. After months without consultation, the employer requested termination due to refusal to work. The subdistrict court ruled in favor of the employer: the employee had violated his reintegration obligation and lost his dismissal protection.
Dismissal during illness and transition compensation
In the event of dismissal during illness or immediately afterwards, the employee is in principle entitled to a transition compensation. This compensation compensates for job loss and is also payable in the event of long-term disability. This right can only lapse in the event of seriously culpable behavior by the employee.
New developments and case law
Judges nowadays assess more critically whether employers comply with their duty of care. Recent rulings have shown that employers who resort to termination too quickly are being pushed back. The attention to burn-out and work stress also plays a role in this: an employer must actively contribute to recovery, not just follow the rules administratively.
What can you do if you are dismissed during illness?
Are you dismissed while you are ill? Then act quickly:
- Save all communication and correspondence with your employer.
- Check whether the dismissal falls under an exception.
- Contact an employment lawyer within two months.
- Submit any objection to the UWV or start proceedings before the subdistrict court.
A timely legal response is crucial. Otherwise you run the risk that the dismissal will become legally valid, even if it was unjustified.
Frequently asked questions about dismissal during illness
Can my employer dismiss me while I am ill?
In principle not. A cancellation ban applies during the first 104 weeks of illness. Dismissal may only be possible in exceptional situations, such as business necessity or serious misconduct.
Do I receive a transition payment if dismissed after illness?
Yes, if terminated after two years of illness, you are entitled to a transition payment, unless you have acted seriously culpably.
What if my employer disputes my illness?
If there is any doubt about my disability, the employer can request an expert opinion from the UWV. A lawyer can help you protect your rights.
What if I resign during illness?
That is possible, but you may lose your right to continued payment of wages or benefits. Always have an employment law lawyer take a look first.
Arslan Advocaten helps with dismissal during illness
The employment law specialists at Arslan Advocaten have extensive experience with disputes about dismissal during illness, reintegration and transition payments. We advise both employees and employers about their rights and obligations. Please contact for direct legal advice.