Can a sick employee be dismissed under Dutch employment law?
The dismissal of ill employees is one of the most regulated areas of Dutch employment law. Under Dutch law, employers face a two-year prohibition on dismissing sick employees, known as the opzegverbod tijdens ziekte. As an employment lawyer in the Netherlands, I regularly advise employers and employees on the rules that apply when illness affects the employment relationship.
Understanding the legal requirements for illness-related termination helps both employers and employees protect their rights. Employers who fail to comply with reintegration obligations risk extended wage payment sanctions, while employees need to know what protections the law offers them.
All parties involved in such cases - employers and employees alike - should fully understand their dismissal protection rights. With this knowledge, companies can remain compliant while also protecting themselves against claims of unfair treatment or discrimination.
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What Counts as Illness at Work under Dutch Employment Law?
Under Dutch employment law, an employee's illness is any medical condition, physical or mental, that makes it difficult or impossible to perform the job. Sickness absence must be documented by a certified company doctor (bedrijfsarts), and during illness the employer must continue to pay at least 70% of the employee's salary for up to two years while working with the employee on reintegration.
It also includes occupational illnesses related to long-term exposure to hazardous materials on the job. Employers must also work with the employee on a reintegration plan, facilitate workplace adjustments, and cooperate with the bedrijfsarts and the UWV; employers should make reasonable accommodations for workers with disabilities resulting from illness.
If the UWV determines that the employer has not made sufficient reintegration efforts, it may impose a wage sanction requiring the employer to continue paying sick pay for a third year, on top of the standard two-year sick pay period.
What Are the Grounds for Dismissal Due to Illness under Dutch Employment Law?
Dismissal of an employee due to illness is only lawful after two years of sickness, and only if the employee remains unable to work and reintegration has failed. The employer must obtain a dismissal permit from the UWV, which assesses the medical prognosis together with the bedrijfsarts and, where appropriate, an independent UWV doctor.
The employer must provide evidence that it would be unreasonable to expect continued employment based on the medical prognosis, and must also show that reasonable efforts were made to facilitate the employee's return, such as workplace adjustments and changes in working hours.
An employee dismissed after two years of illness is entitled to the statutory transition payment (transitievergoeding), calculated at one-third of a monthly salary per year of service. This payment is owed regardless of which party initiates the dismissal, so an employer cannot avoid the obligation simply by leaving the employment contract in place without terminating it.
Employers must adhere strictly to all applicable procedures related to dismissal due to illness; failure to do so could lead to costly litigation that proper procedure would otherwise avoid.
What Procedure Applies to Dismissal Due to Illness in the Netherlands?
Employers must observe the correct dismissal procedure and a valid notice period (opzegtermijn) when dismissing an employee due to illness. A dismissal given in breach of these requirements is voidable: the employee may request the subdistrict court to annul it within two months.
The dismissal prohibition during illness does not prevent a fixed-term contract from expiring on its agreed end date; the employment relationship simply ends when the contract term runs out, after which the employee may apply for sickness benefits through the UWV.
Several steps are required for a fair dismissal procedure when dealing with long-term illness. Dutch case law on such matters helps clarify how employers can dismiss an ill employee while upholding the rights of the employee concerned.
What Are the Legal Implications of Unlawful Dismissal, and What Role Does the Subdistrict Court Play?
If a dismissal is found to be unlawful, the subdistrict court (kantonrechter) may order compensation for lost salary or damages, and the employer may also become liable where the dismissal did not follow the correct procedure or was based on discriminatory grounds. The kantonrechter is responsible for adjudicating disputes over wrongful dismissal, non-payment of wages, breach of contract, and discrimination.
Employees who believe they have been wrongfully dismissed may file a claim with the kantonrechter. Both sides present their evidence and arguments, and the court determines whether an unlawful act was committed before issuing orders for compensation or other remedies. Employers should take care throughout all stages of the dismissal process, including notification requirements and other procedural steps, to minimise the risk of liability.
Key legal sources
- UWV: situations you need permission - official English-language guidance on the dismissal permit process after long-term illness