Termination of Employment in the Netherlands during Sickness

At Fennek Advocaten, we understand that the termination of employment for sick employees can be a complex and sensitive matter. It's important to navigate the legal requirements and considerations involved to ensure compliance with the law and protect the rights of both employers and employees. In this article, we provide valuable insights and guidance on the topic, addressing the key points you need to know.

The General Rule under Dutch Employment Law: Termination Prohibition during Illness

As a general rule, employers are prohibited from terminating the employment of a sick employee during the first two years (104 weeks) of illness or disability. This prohibition, known as the termination prohibition during illness ("opzegverbod tijdens ziekte" in Dutch), grants additional job protection to sick employees. During this period, employers are required to actively engage in the reintegration process with the employee and continue paying their salary.

In the first year of illness, the salary should amount to at least 70% of the employee's regular salary, but not less than the statutory minimum wage. In the second year of illness, the salary should also be at least 70%, but the minimum wage guarantee no longer applies. However, collective bargaining agreements (cao) or employment contracts may deviate from these statutory requirements in favor of the employee. It is advisable to consult the relevant provisions in your specific agreement or cao.

After the two-year period of illness, the employment contract can be terminated. This can be done through mutual agreement between the employer and employee or by applying for a dismissal permit from the Employee Insurance Agency (UWV).

Exceptions to the Termination Prohibition under Dutch Employment Law

There are several exceptions to the general termination prohibition during illness. In the following situations, termination is possible even during the employee's illness:

1. Refusal to Cooperate with Reintegration: If the employee, despite receiving written warnings, refuses to cooperate with the reintegration plan or fails to comply with instructions (from the employer or occupational health physician) aimed at their reintegration, termination may be considered. In such cases, it is advisable for the employer to request an expert opinion from the UWV before proceeding with termination.

2. Ability to Perform Suitable Work: If the employee is capable of performing suitable work as part of their reintegration but refuses to do so, termination may be an option. Again, it is recommended to seek an expert opinion from the UWV in such situations.

3. Immediate Dismissal (Ontslag op staande voet): Immediate dismissal may be justified if there is a severe breach of employment obligations by the employee, regardless of their illness.

4. Company Closure: Termination is possible if the employer is closing down the business.

Preventing Abuse of Illness 

To prevent abuse of the termination prohibition during illness, it is essential to be aware of certain scenarios. If an employee reports sick after the employer has submitted a dismissal request to the UWV, the termination prohibition does not apply. This measure aims to deter employees from misusing the protection against termination during illness. For more information on handling such situations, refer to our step-by-step guide on reorganization.

Situational Incapacity for Work

A gray area in this context is situational incapacity for work ("situatieve arbeidsongeschiktheid" in Dutch). This occurs when an employee becomes ill due to work-related circumstances, often in combination with a history of performance issues. In these cases, despite the illness, the employment contract can often be terminated successfully, typically through a dissolution request filed with the subdistrict court. It is crucial to demonstrate that the termination is based on the employee's performance issues rather than their illness.

Illness Resulting from Workplace Conflict

In some instances, an employee's illness may be caused by a workplace conflict. If the employee is still capable of working for another employer, usually indicated in the report from the occupational health physician, it may be advisable to explore the option of mutually terminating the employment contract. This approach can resolve the conflict, avoiding a protracted reintegration process. It is recommended to seek legal advice to ensure the content of the settlement agreement is in the best interest of both the employer and the employee.

Temporary Employment Contracts under Dutch Law

In cases where a sick employee's temporary employment contract is nearing its end and the employee is still ill, the employer has the option to decide not to renew the contract. In this situation, the employer should submit a sickness notification to the UWV on the last day of the contract.

Seek Professional Advice on Termination of Employment for Sick Employees

Terminating the employment of a sick employee requires careful consideration and adherence to legal requirements. At our law firm, our experienced labor law specialists are ready to provide expert guidance and address your specific concerns.

Disclaimer: This article is provided for informational purposes only and does not constitute legal advice. For specific guidance on your situation, I recommend consulting with a qualified professional.