When does the prohibition against termination during sickness apply?

In the Netherlands, employers are generally prohibited from dismissing sick employees in the event of a reorganization, even if those employees are eligible for dismissal based on the reflection principle (in Dutch: afspiegelingsbedinsel). This general prohibition allows sick employees to rely on staying employed while on leave. The only exception to this rule, meaning the prohibition will not apply, is if the employee reports sick after the employer has filed a dismissal application with the UWV (the Dutch Employee Insurance Agency). This prevents employees from abusing the prohibition against termination during sickness.

Appeal following a refusal to issue a dismissal permit

If the UWV refuses to issue a dismissal permit, the employer may lodge an appeal with the subdistrict court. The question then is whether the prohibition against termination during sickness applies if an employee reports sick after the employer has filed a dismissal application with the UWV but before the termination proceedings before the subdistrict court commence. The Court of Appeal of ’s-Hertogenbosch pondered this question in 2017. It found that whether an application for termination is impeded by a prohibition against termination hinges on the time the subdistrict court receives the application for termination. According to the Court of Appeal, the prohibition against termination remains fully applicable after the UWV has refused to issue a dismissal permit. The fact that the employer filed the original dismissal application with the UWV prior to the employee reporting sick is irrelevant.

Different approach?

A year later, the District Court of Limburg took a completely different approach. The District Court found that the prohibition against termination during sickness actually does not apply if an employee reports sick after the employer has applied for a dismissal permit from the UWV but before the application for termination (under Article 7:669(3)(a) of the Dutch Civil Code) has been submitted to the subdistrict court due to the UWV refusing to issue a dismissal permit. The District Court held that it would be open to abuse if an employee could successfully rely on the prohibition against termination by reporting sick after the dismissal application to the UWV but before the termination proceedings.

Recent decision

Conversely, on 5 February 2021, the District Court of the Northern Netherlands reasoned along the same lines as the Court of Appeal: the prohibition against termination during sickness applies in full if an employee reports sick after the dismissal application to the UWV but before the termination proceedings. In that case, an employer filed a dismissal application with the UWV on economic grounds on 22 June 2020. The UWV refused to issue the permit on 1 October 2020. The employee then reported sick on 14 October 2020, after which the employer lodged an appeal with the subdistrict court on 27 November 2020. Naturally, the employer’s goal was still to get the employment contract terminated. Even though the subdistrict court did indeed see reasons for terminating the employment contract, it denied that termination due to the prohibition—a raw deal for the employer.

Conclusion

The majority of these decisions favors the employee. The starting point is that termination proceedings on appeal are not seen as an extension of the UWV proceedings. When the dismissal does not relate to the sickness, an employee could report in sick strategically after the dismissal application to the UWV but before the termination application. This could be open to abuse. But given that one swallow does not make a summer, for now employers must await new decisions by higher courts that agree with the District Court of Limburg.

Inge Slangen (is@clintlegal.com / +31 20 820 0330)