3 December 2025
Don’t count the number of warnings
That five official warnings do not automatically justify a lawful dismissal was once again confirmed in a recent ruling by the Gelderland Subdistrict Court.
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25 February 2025
Immediate Dismissal of a Sick Employee
During the first two years of an employee’s illness, an employer is generally not allowed to terminate the employment contract. However, there are exceptions to this rule. The dismissal protection does not apply if the sick employee is dismissed for urgent reasons, meaning they are dismissed on the spot (summary dismissal).
What Is Summary Dismissal?
With summary dismissal, the employment contract ends immediately. The employee is no longer entitled to salary and, in most cases, will not receive unemployment benefits from the UWV. Due to these severe consequences, summary dismissal is not easily granted. An employer may only dismiss an employee on the spot if there is an urgent reason, such as leaking company secrets or theft. The employer must immediately inform the employee of the urgent reason, and there must be no significant delay between the incident and the dismissal. Additionally, the employer must provide evidence of the urgent reason.
Urgent Reason for a Sick Employee?
But when is there a valid urgent reason to dismiss a sick employee? Proving an urgent reason for summary dismissal is particularly difficult when the employee is ill. The mere fact that an employee is sick is not a valid reason. Likewise, failing to comply with sick leave regulations is not sufficient. There must be additional circumstances. For example, if an employee falsely reports being sick and then fails to show up for work, this may, in certain cases, constitute a valid reason for dismissal.
Burden of Proof
The employer must prove that there is an urgent reason for summary dismissal. This means the employer must demonstrate that the employee acted in a way that is so seriously culpable that immediate termination is justified.
Recent Court Ruling – Rotterdam District Court [1]
A truck driver had been employed by a transport company since February 1, 2023, under a fixed-term contract from September 1, 2023, to March 31, 2024. On January 5, 2024, the day he was scheduled to work, he sent a message to his supervisor at 7:15 AM stating that he was sick. That day, he was supposed to drive from Münster to Amsterdam.
On January 6, 2024, the employer dismissed the truck driver on the spot. The employer claimed that the driver was not actually sick but simply did not feel like working. This claim was based on the allegation that the driver had told the company owner’s stepfather that he was not sick. The employer interpreted this as a refusal to work and considered it an urgent reason for dismissal. The driver denied this and maintained that he was genuinely ill.
The court ruled that it could not determine whose version of events was correct. According to the employer, the truck driver refused to work, while according to the driver, he was ill. Was the truck driver actually sick or not? The court determined that the burden of proof lies with the employer to demonstrate that the driver was not sick and that his absence constituted a refusal to work. The employer was granted the opportunity to provide this proof, and the case will continue accordingly.
Conclusion
When dismissing a sick employee on the spot, it is crucial that the employer can prove there is an urgent reason for dismissal. If the employer claims that the sick employee refused to work, they must provide evidence that the absent employee was not actually sick. This can be a significant challenge for employers. It is therefore important to carefully consider these aspects when deciding on the immediate dismissal of a sick employee.
More Information
Do you have questions about this article? Or do you need legal advice in a similar case? Feel free to contact us.
[1] Rotterdam District Court, June 14, 2024, ECLI:NL:RBROT:2024:5561.
