If you become ill, your employer may not dismiss you for the first two years. During this period, the employer must continue to pay your salary and work with you on reintegration. But what happens if you still cannot work after those two years? Then dismissal due to long-term incapacity for work may apply.
In this article, we explain how dismissal after long-term illness works, what rights you have and what compensation you can expect.
Prohibition of dismissal during the first 2 years of illness
During the first two years of illness, a ban on dismissal applies. This means that:
Your employer may not dismiss you.
Your salary must continue to be paid at a minimum of 70%.
You and your employer are obliged to work together on your reintegration.
Only in exceptional circumstances may dismissal occur earlier, for example in the event of bankruptcy or summary dismissal.
Dismissal after 2 years of illness
After two years of illness, the employer can apply to the UWV for dismissal due to long-term incapacity for work. The conditions are:
You can no longer perform your own work.
Redeployment to a different position is not possible.
The reintegration process has been completed.
The UWV assesses whether the employer and employee have made sufficient efforts to make reintegration succeed.
Transition payment upon dismissal due to long-term illness
Since 2020, you are also entitled to a transition payment upon dismissal after long-term illness.
This payment is calculated based on your years of service.
The employer can receive compensation from the UWV for this.
As a result, it is no longer an excuse for employers to keep a contract "dormant" to avoid paying the compensation.
Dormant employment
Many employers kept employees in service after 2 years of illness without paying salary, in order to avoid paying the transition payment. The Supreme Court has ruled that this is not permitted: the employer must cooperate in terminating the employment with payment of the transition payment.
Settlement agreement in case of illness
Sometimes the employer offers a settlement agreement (VSO) to arrange the dismissal. Pay close attention to:
Ensure the transition payment is correctly calculated.
Pay attention to your right to a WIA benefit and coordination with the UWV.
Where possible, negotiate extras such as outplacement or a training budget.
Practical examples
Example 1: An employee was ill for 2 years and received a VSO offer. Upon review, the transition payment turned out to be calculated too low. After negotiation, he received an additional EUR 4,000.
Example 2: An employer kept an employee "dormant" in service. The court ruled that the employment had to be terminated with payment of the transition payment.
Example 3: An employee was partially fit for work after 2 years. The UWV ruled that redeployment was nonetheless not possible, allowing the dismissal.
Checklist: dismissal after long-term illness
Check whether the reintegration process has been followed correctly.
Check whether the full 2-year period of illness has elapsed.
Check whether the transition payment is correct.
Consider a VSO with extras on top of the transition payment.
Always have your situation assessed by an employment lawyer.
Common mistakes
Thinking the employer may automatically dismiss after 2 years.
Accepting a transition payment that is too low.
Not knowing that compensation is also owed in cases of long-term illness.
Not seeking legal advice for a VSO.
Frequently asked questions (FAQ)
1. May my employer dismiss me while I am ill?
Not in the first 2 years; after that, sometimes yes.
2. Am I entitled to a transition payment upon dismissal after 2 years of illness?
Yes, since 2020 this always applies.
3. What is a dormant employment?
When the employer keeps you in service after 2 years of illness to avoid paying the transition payment. This is no longer permitted.
4. How much is my transition payment?
One-third of a monthly salary per year of service, calculated on a pro rata basis.
5. Do I have to sign a VSO upon dismissal due to illness?
No, but it can sometimes be advantageous to negotiate extras. Always have this checked.
Why Arslan Advocaten?
Specialised in dismissal during illness and reintegration
Checking whether your rights during and after illness have been respected
Negotiating VSOs and compensation
Ensuring you receive what you are entitled to, even in cases of long-term incapacity for work
Conclusion
Dismissal due to long-term illness is only permitted after 2 years of incapacity for work and if reintegration is impossible. You always retain the right to a transition payment and do not have to accept a dormant employment. Therefore, always have a lawyer review your case, so your rights remain protected.