Termination of an employment contract during illness

Dutch employment law protects the sick employee to a high degree.

GMW lawyers set out below how far this protection reaches.

Continued payment of wages during illness

The employer is obliged to continue to pay (part of) the salary of the sick employee for two years. During that period, the employer cannot terminate the employment contract: a prohibition of termination applies. The prohibition of termination during illness also applies if the employee is partly able to carry out the work. Only when he is able again to carry out his work in full is the prohibition no longer applicable. Setting aside the employment contract of a sick employee is however often possible.

When does a prohibition of termination during illness apply?

The prohibition of termination during illness applies in principle during the first two years the employee is incapacitated for work. If periods of incapacity follow each other with intervals of less than four weeks, these are added together to determine the total term of the illness.

The period of two years can be extended. This is the case if the UWV extends the obligation to continue to pay wages. This could occur if the employer has not complied with the reintegration obligations.

Dismissal for commercial reasons not possible

The consequences of the prohibition of termination during illness are greatest in the event of commercial dismissal: commercial dismissal via UWV (termination) or the sub-district court (setting aside) is not possible. If it was the sick employee who was eligible for being made redundant on the basis of the proportionality principle, the employer must nominate the next employee on the list for redundancy. The sick employee is protected. The exception is dismissal for commercial reason due to general business cessation. And this prohibition does not apply if the employee has become incapacitated for work after the employer has submitted an application for dismissal to the UWV.

Is it nevertheless possible to terminate the employment contract?

The employment contract with a sick employee can under certain conditions still be terminated. Firstly, this is possible if the employer and employee reach agreement on the termination of the employment contract. This could however have consequences for the sick employee relating to benefits and the employer can on the termination of the employment contract with a sick employee be faced with premium consequences.

In addition, there are a number of exceptions to the prohibition of termination during illness. The prohibition does not apply if the reason for the termination is not the illness and one of the following situations occur:

  • Termination during the probationary period;
  • There is an urgent reason (instant dismissal);
  • The employee has reached the state pension age.

Setting aside the employment contract

Finally, the employer can apply to the sub-district court to set aside the employment contract with the sick employee. The employer can request the sub-district court to set aside the employment contract with a sick employee for a different reason than illness and – therefore – for other reasons than commercial reasons. This could include setting aside due to a damaged working relationship with a sick employee, or due to unsatisfactory performance – provided the application for dismissal does not relate to the incapacity for work of the employee. The prohibition of termination does also not apply, and the employer can apply for a setting aside of the employment contract, if a sick employee refuses to cooperate in his reintegration.

More information

GMW lawyers will be happy to help you with all your employment-related legal issues. If you have any questions, please contact us directly using the enquiry form below or +31 (0)70 3615048. Our pension and employment lawyers will be happy to support and advise you.

More employment law related topics >

Lawyers

Amber Willemsen

Amber Willemsen

Read more about this lawyer
Godelijn Boonman

Godelijn Boonman

Read more about this lawyer
Prof. Hans van Meerten

Prof. Hans van Meerten

Read more about this lawyer
Roos van Zaltbommel

Roos van Zaltbommel

Read more about this lawyer

Looking for an employment law lawyer in The Hague?

GMW lawyers will be happy to help you with all your employment law issues. Our lawyers assist both employers and employees.

Do you have a question? Please feel free to contact us.

"*" indicates required fields

newsletter?

You might also like

End of employment due to restructuring

13 May 2024

End of employment due to restructuring

You have your own business and employ up to 50 people. Unfortunately, for business economic reasons, you are forced to restructure and lay off some employees.

Read more

Read more about
The redeployment condition

1 May 2024

The redeployment condition: what can be expected from your employer?

An employment agreement can, in principle, only be terminated if the following conditions have been met:

Read more

Read more about
Changes to Dutch employment law some things to watch out for

24 April 2024

Changes to Dutch employment law: some things to watch out for

Dutch employment law is constantly changing. 2024 is no different with several interesting pieces of legislation are in the pipeline. Seliz Demirci from GMW Lawyers has the lowdown on the changes to Dutch employment law.

Read more

Read more about
Controversy about the non-compete clause

16 April 2024

Controversy about the non-compete clause

The non-compete clause is not ‘set in stone’. In practice we see many conflicts and proceedings about the non-compete clause, especially in the current tight labour market.

Read more

Read more about
Suspend or discontinue the salary

3 April 2024

Suspend or discontinue the salary?

In the event of occupational disability, an employee is entitled to continued payment of their salary for 104 weeks. During this period, both the employer and the employee have rehabilitation obligations.

Read more

Read more about
Loss of pension

26 March 2024

Loss of pension

It is common for an employer and employee to terminate an employment contract by entering into a settlement agreement.

Read more

Read more about
Termination of employment at retirement age

25 March 2024

Termination of employment at retirement age

Employees in the Netherlands enjoy a high degree of protection against dismissal. An exception to dismissal protection applies to employees who have reached retirement age.

Read more

Read more about
Dismissal with a hefty price tag

4 March 2024

Dismissal with a hefty price tag

The law lists several grounds for dismissal. An employer can terminate the employment contract if one of these grounds, or a combination of them, is present. It must also be clear that the employee cannot be re-employed within the organisation. One of the grounds for dismissal under the law is a damaged working relationship.

Read more

Read more about
Summary dismissal: the dismissal letter

19 February 2024

Summary dismissal: the dismissal letter

Shortly before the summer holidays, the Supreme Court delivered two rulings on summary dismissal. These refer to the urgent reason notice requirement in the dismissal letter and the claim for compensation from an employee who is summarily dismissed.

Read more

Read more about