Dismissal for violation of sick leave regulations: difficult but not impossible

In principle, it is not possible to dismiss an employee for violating sickness absence regulations. The law provides for a wage sanction (Article 7:629 of the Dutch Civil Code) in the event of a violation, not dismissal. Nevertheless, dismissal is not impossible: if the employee repeatedly and knowingly violates the regulations, even after a written warning and a wage sanction, this may constitute seriously culpable conduct that does justify dismissal. Crucial in this regard are a watertight absence policy, a clear written warning, and (almost always) an expert opinion from the UWV.

Control regulations versus reintegration regulations

In practice, there is often talk of “sickness absence regulations,” but legally, the legislator distinguishes between two types of regulations. Which regulation has been violated partly determines which sanction the employer may impose.

Inspection regulations

Control regulations are reasonable regulations regarding the provision of information. They enable the employer to verify whether the employee is actually ill and therefore entitled to wages. Examples include the obligation to be contactable, to respond to a call from the occupational health service, or to undergo a check by the company doctor. If the employee fails to comply with these, the employer may suspend: as soon as the employee makes the check possible, the outstanding wages will be paid.

Reintegration regulations

Reintegration regulations relate to the return to work of an incapacitated employee, for example, cooperating in suitable work or following reasonable instructions from the company doctor. In the event of a violation, the employer may impose a wage freeze : there is no entitlement to wages for the period during which the employee refuses to cooperate without good reason. Unlike suspension, these wages are not paid out at a later date either.

In both cases, an important condition applies: the employer must first warn and announce the sanction without delay. The legislator assumes that this financial incentive is generally sufficient to induce the employee to cooperate. Dismissal is therefore not the first route.

Tip: Establish sickness absence regulations in writing in advance in an absence policy or employee handbook. Under certain conditions, case law even accepts a penalty clause for violations of such regulatory provisions. Without properly documented regulations, you are left empty-handed as an employer.

The basic principle: wage sanction instead of dismissal

The legal system is clear: the wage sanction is the primary means of pressure against an employee who fails to comply with absence regulations. In principle, the court does not permit dismissal solely on the grounds of violating control or reintegration regulations. An employer who resorts to dismissal too quickly risks having the dismissal reversed and having to pay wages and possibly compensation after all.

In addition, a prohibition on termination applies during illness: as long as the employee is incapacitated for work, the employment contract may not, in principle, be terminated. Consequently, dismissal in this situation almost always proceeds via a request for dissolution before the subdistrict court and, in exceptional cases, via summary dismissal. Moreover, the employer is bound by strict procedural requirements. Pursuant to Article 7:671b of the Dutch Civil Code, the court will, in principle, only grant a request for dissolution due to failure to comply with reintegration obligations if the employer possesses an expert opinion from the UWV and has sent a written warning to the employee. This requirement does not apply only when such an opinion cannot reasonably be expected of the employer.

When is dismissal possible, then?

There is an important exception to the basic principle of seriously reprehensible conduct by the employee. Failure to comply with absence regulations can be so serious that a wage sanction is no longer sufficient and dismissal is indeed justified.

The judge assesses whether this is the case based on all the circumstances. The following elements, among others, recur in case law:

• the employee repeatedly violates the regulations and continues to do so, even after a wage sanction has already been applied;
• the employer has admonished and unequivocally warned the employee in writing of the consequences;
• an expert opinion has been submitted (with the exception above) that supports the employee's conduct;
• The employee has no acceptable explanation for his refusal, for example in the case of a prolonged stay abroad without permission.

The combination of repeated violations, clear warnings, and the lack of good reason can create the impression of an employee deliberately obstructing their reintegration. In such cases, dismissal comes into play, usually through dissolution by the subdistrict court and, in exceptional cases, through summary dismissal.

The role of the Vixia/Gerrits judgment

In the well-known Vixia/Gerrits (HR 8 October 2004), the Supreme Court ruled that a mere refusal by an employee to comply with control regulations does not in itself constitute urgent grounds for summary dismissal; in principle, such a violation can only be punished with a wage sanction. This may be different if there are additional circumstances. However, the Supreme Court has never precisely defined what those additional circumstances are. This makes summary dismissal on this ground risky: the bar is set high and the outcome depends heavily on the facts. Therefore, always have such a step legally reviewed beforehand.

Step-by-step plan: what do you need to do as an employer?

If you want to make your position as strong as possible, carefully go through the following steps before you consider resigning:

1. Document the regulations. Ensure there is an up-to-date absence policy or employee handbook to which the employment contract refers.
2. Engage the company doctor or occupational health service. Have it objectively determined what the employee can and cannot do, so that it is clear which instructions are reasonable.
3. Apply the appropriate sanction. Suspend wages in the case of control regulations or impose a wage freeze in the case of reintegration regulations, and announce this in writing without delay.
4. Issue a written warning. Urge the employee to comply with the regulations and specifically point out the consequences, including possible dismissal.
5. Request an expert opinion from the UWV. As a rule, this is indispensable before the court grants a dissolution on this ground.
6. Build a case file. Document every step, summons, and response in writing. Without a case file, a dismissal rarely stands up in court.

Frequently Asked Questions

Am I allowed to dismiss a sick employee if he ignores the absence regulations?

In principle, no. The law prescribes a wage sanction first for a violation, not dismissal. Only if the employee continues to violate the regulations despite warnings and a wage sanction can there be a case of seriously reprehensible conduct justifying dismissal. Moreover, a prohibition on termination applies during illness, meaning that dismissal usually proceeds via dissolution by the subdistrict court.

What is the difference between wage suspension and a wage freeze?

In the event of wage suspension (due to violation of inspection regulations), wages are temporarily withheld but are paid retroactively as soon as the employee allows for the inspection. In the event of a wage freeze (due to violation of reintegration regulations), the right to wages for the relevant period is permanently forfeited. The appropriate sanction depends on the regulation violated; imposing the wrong sanction could prove costly for the employer later on.

Do I always need an expert opinion from the UWV?

For a dissolution due to failure to comply with reintegration obligations, the court generally requires an expert opinion from the UWV (Article 7:671b of the Dutch Civil Code). This requirement does not apply only when such an opinion cannot reasonably be expected of you. Therefore, request the opinion in a timely manner; without this opinion, a request for dismissal often fails due to a mere formality.

Does a prohibition on termination apply if my employee is sick?

Yes. During the initial period of incapacity for work, a prohibition on termination applies in principle, meaning you cannot simply terminate the employment contract. Therefore, dismissal due to illness almost always proceeds via a request for dissolution before the subdistrict court. The prohibition on termination protects the employee, but it does not in all cases prevent dismissal due to demonstrably seriously culpable conduct. Therefore, have your situation assessed beforehand.

Can I include a fine for violation of the default regulations?

The courts accept, subject to conditions, a penalty clause for violations of regulations included in a set of rules. Strict requirements apply to such a clause, including regarding the amount and its written recording. Therefore, always have a penalty clause legally reviewed before using it.

What constitutes seriously reprehensible conduct in cases of sick leave?

This may be the case if an employee repeatedly and knowingly disregards the control or reintegration regulations, even after having received a written warning and a wage sanction has been imposed, without having an acceptable explanation for doing so. It is a high threshold that the judge determines on a case-by-case basis, taking all circumstances into account.

How SME Lawyers helps you

Dismissal due to sick leave is a legal minefield: one missed step in the procedure and the dismissal will not hold up. Our legal experts assist you from the very beginning of drafting a watertight employment contract and absence regulations, and stand by you as soon as an employee refuses to comply with the rules. We draft the correct wage sanction and warning notice, guide the application for an expert opinion, and build a case file with you that will withstand any potential dismissal proceedings.

• Need help with an ongoing employment dispute or dismissal case? View our employment law expertise.
• Do you want to properly arrange your regulations and employment conditions in advance? View our employment contract and employee handbook.
• Want to discuss your situation directly with a lawyer? Schedule an intake and we'll take a look with you.