Is dismissal during illness possible in the Netherlands?

Dismissal due to Illness? Is that possible under Dutch law? What are your rights? Free 1st advice

Can I be dismissed if I am sick?

In principle, you cannot be dismissed if you are ill. A so-called 'opzegverbod' (termination prohibition) applies in that case.

Dismissal during illness is usually not possible. This means that the UWV (Employee Insurance Agency) does not grant your employer permission to terminate the employment contract if you are sick. Only if your employer can demonstrate that you will recover within 4 weeks after the submitted dismissal request, permission (dismissal permit) can still be granted despite your illness. However, there are the following exceptions to this principle of not being able to dismiss during illness.

Two years of sickness... and then?

Protection against dismissal during illness is not unlimited but applies during the first two years of a continuous period of illness. A period of illness also applies as continuous if you become sick again within 4 weeks after returning to work. After the end of the specified two-year period, the employer can terminate the employment contract. To be able to validly terminate, the employer needs permission or a dismissal permit from the UWV Employee Insurance Agency. The UWV Employee Insurance Agency (UWV) will only grant this permit if all of the following conditions are met:

• You are no longer able to perform your job due to illness.
• The expectation is that you cannot return to work within 26 weeks (even not with retraining);
• You and your employer have made sufficient reintegration efforts but without success.

As an employee, you are obligated to cooperate sufficiently during the period of illness to reasonable attempts by your employer to get you back to work. This could include accepting offered training or accepting other suitable tasks within the company.

Reporting sick after a dismissal request

Another important exception to protection against dismissal during illness is that this legal protection does not apply if the employee reports sick after the employer has submitted a request for dismissal to the UWV. Therefore, reporting sick after a dismissal request has no effect, and dismissal during illness can occur in that case. This provision is included in the law because in the past, some employees abused the protection against dismissal during illness by suddenly reporting sick after a dismissal request.

Other exceptions to protection against dismissal during illness

We have discussed the statutory dismissal protection for employees in cases where the employer wants to terminate the employment contract after obtaining permission from the UWV Employee Insurance Agency. Does the employee also enjoy this protection against dismissal during illness if the employer wants to terminate the employment contract in a different way?

In cases of dismissal with immediate effect (dismissal on the spot), this protection does not apply. Nor does this protection apply if a fixed-term contract is not extended but ends on the agreed-upon date. This means that the contract can end even if you are sick. Therefore, in these cases, dismissal during sick leave or during a sick leave period is possible.

If the employer files a request with the labor court to terminate the employment contract with a sick employee, the labor court will be very cautious. This means that the employer's request will only be granted if special circumstances arise.

Protection against dismissal due to illness, regardless of the reason for dismissal, must be distinguished from dismissal due to illness. The latter means that incapacity for work is cited as the reason for dismissal. However, incapacity for work is not in itself grounds for dismissal.

For this reason, the employer will not receive permission from the UWV Employee Insurance Agency or the labor court to dismiss the employee. The following exception applies to this situation.

Dismissal during illness due to frequent sickness.

If the illness disproportionately burdens the colleagues of the sick employee who have to take over the work, the labor court can grant the requested dismissal and therefore allow dismissal due to illness. This can be the case, for example, if the employee is frequently sick. In such a dismissal request, the labor court will consider the following factors:
• What are the consequences of the sick leave for the employer's organization?
• Can the employer change the working conditions in such a way that the employee becomes sick less often?
• What is the average absenteeism rate of other employees at the employer?

Alcohol (addiction) and dismissal.

Alcohol addiction is considered a disease by many judges. In that case, the person enjoys the protection that a sick employee is entitled to. The alcohol-addicted person is, however, obligated to seek treatment. Referral through the general practitioner to specialized help is therefore advisable. If it is established that the employee is suffering from alcohol addiction, the employer cannot dismiss the employee on the spot for that reason. However, serious misconduct by the employee in the workplace can be a different matter. Occasional alcohol abuse, whether or not in the workplace, can indeed be a reason for dismissal on the spot. Drunkenness is explicitly mentioned in the law as a reason for dismissal on the spot. If the drunkenness is a result of alcohol addiction, there is a reasonable chance that the court will declare the dismissal invalid. For more information on dismissal due to alcohol use and illness and alcohol addiction, see: dismissal alcohol.

The combination of alcohol and dismissal is therefore legally challenging.

Pregnant and dismissal

Pregnancy is, of course, not an illness. A pregnant employee enjoys protection against dismissal just like a sick employee. This protection extends throughout the pregnancy (starting from the first day of pregnancy), maternity leave, and up to a period of 6 weeks after maternity leave. Even if complications have arisen during childbirth that prevent the employee from returning to work, the protection against dismissal continues. The employer may request proof of pregnancy. This can be a statement from a doctor or midwife. For a more detailed explanation of rights during pregnancy, click on dismissal pregnancy.

Burnout and dismissal

It is increasingly common for employees to experience 'burnout' due to, for example, excessive workload. Sometimes employees with burnout are sick, but not always. What are your rights in that case? and the possibilities or impossibilities of dismissal? Read more about this on our special page 'dismissal due to burnout'.

Sick due to conflict?

A conflict at work can be sickness-inducing. The question, however, is whether there is a genuine illness or not, and what obligations the employer and employee have. Read more about this at: sick due to conflict.

Who determines if an employee is incapacitated for work?

Initially, it is, of course, up to the employee to determine whether they consider themselves capable of performing their work. If the work cannot be carried out due to physical or psychological complaints, there is sickness or incapacity for work.

What if the employer doubts the sick report? It should be emphasized that an employer cannot determine whether an employee is sick or not. An employer cannot demand that an employee provides medical information. The employer can, however, engage an occupational health physician to check to what extent the sick report is valid.

Requesting self-dismissal while being sick

In general, it is not advisable for an employee to terminate the employment contract themselves, even if they are sick. After all, you are not entitled to unemployment benefits (WW) or sickness benefits and you are not entitled to a severance payment. However, it may happen that your illness has been demonstrably caused by the (mis)conduct of the employer. In that case, the employee can consider requesting the labor court to dissolve the employment contract. If the employer's misconduct is sufficiently proven, the employee can claim unemployment benefits and a severance payment. Be well informed about this possibility by our experts.

Settlement agreement for illness 

Despite illness, many employers offer employees a termination arrangement for the employment contract. This usually takes the form of a so-called 'settlement agreement'. Usually, entering into a settlement agreement during illness is not advisable. But sometimes it can also be a solution in the case of 'temporary' illness. Read more about this at: settlement agreement for illness.

Immediate advice for dismissal while being sick

In summary, the employee is protected against dismissal during illness. Also during pregnancy and dismissal. There are some important exceptions to protection against dismissal during illness. Our dismissal specialist can advise you and defend your rights if necessary regarding dismissal during illness or dismissal due to illness.

Why use the services of our dismissal specialist for dismissal during illness?

There are many reasons why you would do well to enlist the help of our dismissal specialists. We mention a few:
• Fully specialized in dismissal cases
• Prompt service, a 1st advice within 24 hours;
• Skilled negotiators;
• Over 30 years of knowledge and experience;
• We always strive for the best result;
• Very high customer satisfaction ratings (9.6)!

So call: 0900 – 123 73 24 or email us if you have questions about dismissal during illness. First advice = Free.