Dismissal due to illness during probationary period allowed?

Does dismissal of an employee who is incapacitated due to an occupational accident on the penultimate day of his or her probationary period amount to prohibited dismissal due to chronic illness or disability or a conflict with good employment practices? This question featured in a recent case heard at Limburg District Court.

What was the case about?

A man was employed as a maintenance engineer under a temporary contract. During his second week, his middle finger became trapped while moving some equipment. When it turned out that the injury might be permanent, the employer terminated his employment contract on the penultimate day of the probationary period. At the employee’s request, the employer communicated the ground for dismissal by WhatsApp the next day:

“As soon as you’re better, and we have a vacancy, you’re welcome to come and work for us!”

The employee argued that this amounted to prohibited dismissal due to chronic illness or disability, since it had become clear that his condition was likely to be permanent. He also argued that the dismissal was contrary to good employment practices, since it was due solely to his long-term incapacity for work, whereas he had received an excellent assessment.

Contrary to ban on discrimination?

The ban on dismissal during illness does not apply during an employee’s probationary period. Nevertheless, dismissal during illness may amount to discrimination prohibited under the Dutch Equal Treatment of Disabled and Chronically Ill People Act (Wet gelijke behandeling op grond van handicap of chronische ziekte (“WGBH/CZ”)). Employees tend to rely on this ban to counter probationary period dismissals during illness or pregnancy. For instance, the Netherlands Institute for Human Rights ruled that dismissal during the probationary period of an employee who only revealed soon after taking up her post that she was receiving sickness benefit and had struggled with burn-out in the past amounted to discrimination within the meaning of the WGBH/CZ.

The sub-district court took the view that the circumstances gave rise to the suspicion that discrimination due to chronic illness applied in this case too. Since the employer said that the employee was welcome to return when he was better and there was another vacancy, the employer appears to have terminated the employment contract when it found out about the employee’s chronic illness. The timing of the dismissal – on the penultimate day of the probationary period – reinforces the impression of discrimination.

However, the sub-district court found that the employer successfully proved that no discrimination had occurred. This was because it was prepared to take the employee back on when he had recovered, provided that there was a vacancy. The offer via WhatsApp was specific and adequate, particularly since the employer stated during the hearing that it needed well-trained technical staff like the employee in question.

Contrary to good employment practices?

Was this dismissal actually contrary to good employment practices? In this respect, the sub-district court found firstly that, according to case law, neither the employer nor the employee is usually liable to pay damages in the case of dismissal during the probationary period. Indeed, the probationary period is intended to allow the parties to gain experience with one another on a trial basis. This includes instant dismissal, even if it takes place on the final day of the probationary period.

As an example of a case in which damages were due, the sub-district court cited the situation where the employee is dismissed shortly after the beginning of the probationary period. In that case, the employer does not allow the employee a reasonable period of time before forming an opinion of the employee’s suitability for the contracted work. However, that situation did not apply in this case.

Even considering all the facts and circumstances together, the sub-district court found that the employee had not been dismissed contrary to good employment practices. Nor was it legally relevant that the employment contract had been terminated on a ground unrelated to the purpose of the probationary period. It was established that the employer did not communicate the ground for dismissal immediately. By law, the employer must state the ground for dismissal in writing at the employee’s request. The employer fulfilled this obligation by communicating the ground via WhatsApp the day after the dismissal. The reason for dismissal was therefore made clear.

Conclusion

Dismissal may take place during an employee’s probationary period in case of illness, but such dismissal can be discriminatory. Confirm the dismissal in a timely manner in writing. When stating the reason for dismissal – whether requested by the employee or not – take care how you phrase it.

Eric van Dam (evd@clintlegal.com / +31 20 820 0330)