On 18 February 2022, the Supreme Court ruled that there is no question of a dismissal ban during illness in a dissolution procedure before the subdistrict court on the a-ground if an employee has reported sick in the period after UWV’s request for permission to terminate the employment contract has been made, but before the request for termination was received by the subdistrict court.

What was the issue?

In 2008, the employee started working for the employer – a company whose main activity was stand construction – as a stand constructor. With the outbreak of the corona crisis, the employer was confronted with the virtual disappearance of the stand construction activities. For this reason, in June 2020, the employer requested permission from the UWV to terminate the employee’s employment contract on the grounds of the job becoming redundant due to economic circumstances. On 1 October 2020, the UWV rejected the employer’s request. The employee subsequently reported sick in mid-October 2020, after which the employer requested the court to dissolve the employment contract in November 2020. The subdistrict court ruled that the dismissal ban during illness now stood in the way of termination of the employment contract and rejected the employer’s termination request. The case was then taken to the Supreme Court for cassation in the interest of the law.

Dismissal ban during illness

If an employee is unfit to work due to illness, the dismissal ban during illness applies in principle. Pursuant to this dismissal ban, the employment contract cannot be terminated by the employer during the period that the employee is unfit to perform his work. However, there is an exception to this, namely when the employee reports sick after the employer has requested the UWV for permission to terminate the employment contract. In that case, the dismissal ban does not apply. The Supreme Court was asked in cassation what exactly is the scope of the dismissal ban during illness.

Judgment of the Supreme Court

In the Supreme Court’s opinion, the dismissal ban during illness does not preclude the termination of the employment contract on the a-ground if the employee has become ill after the request for dismissal has been submitted to the UWV. As a result, the aforementioned exception to the dismissal ban during illness continued to have effect in the subsequent termination proceedings due to economic circumstances, and there was no question of a prohibition on giving notice. According to the Supreme Court, this interpretation is in line with the legislator’s intention to prevent improper use of the dismissal ban during illness by limiting the scope of the dismissal ban. If incapacity for work, commenced in the period between the request for dismissal and the termination request were filed, were to stand in the way of the request for termination being allowed, this would leave room for an employee to frustrate the request for termination by reporting himself sick falsely after the UWV had refused the dismissal request. According to the Supreme Court, this interpretation is also in line with the fact that the proceedings at the UWV and those at the subdistrict court are closely connected. After all, the subdistrict court can only terminate an employment contract on the ‘a’-ground after the employer has first requested permission to terminate the employment contract from the UWV and this permission has been refused by the UWV.

Advice to employers

If you are an employer faced with economic circumstances and wish to terminate the employment contract of one or more employees as a result, we advise you to submit a (provisional) dismissal request to the UWV as soon as possible. As soon as the UWV has received this dismissal request, the employee calling in sick no longer constitutes a problem in the dismissal procedure, not even in a subsequent termination procedure at the subdistrict court.

For questions or advice on this subject, please contact Bart de Vroe (+316 203 662 43) or Puck Keurentjes (+316 128 603 80).

This article was published in the Newsletter Vestius of April 2022

Go to Newsletter Vestius of April 2022