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Dismissal protection means that certain employees cannot simply be dismissed: a prohibition on termination applies during illness, pregnancy, and membership of the Works Council, among others, and dismissal on discriminatory grounds is always prohibited. This protection is not an absolute shield — in the event of urgent cause, a reorganization, or bankruptcy, or by mutual agreement, a protected employee may also be dismissed, provided the correct procedure is followed. Below, you can read how it works and what risks wrongful dismissal entails.
What is protection against dismissal?
Protection against dismissal plays a fundamental role in employment law: it ensures that employees cannot be dismissed without good reason. It is not an absolute shield against dismissal, but a safeguard against unfair dismissal. The legislator distinguishes between dismissal for a prohibited reason (such as discrimination) and a prohibition on termination during a specific situation (such as illness).
Who enjoys protection against dismissal?
Dismissal on discriminatory or unreasonable grounds is always prohibited — think of origin, age, gender, gender reassignment, political preference, or disability. In addition, a prohibition on termination applies to employees in certain situations, including:
- sick employees (in principle during the first two years of illness);
- pregnant employees and employees on maternity or childbirth leave;
- employees fulfilling their military service;
- members of the Works Council or employee representation.
The prohibition on termination during these situations ends as soon as the situation concludes. Other reasons are also prohibited, for example, dismissal because an employee invokes the Equal Treatment Act or refuses to work on Sundays.
Protection against dismissal is not absolute
Protection does not mean that an employee must stay under all circumstances. A protected employee can still be dismissed, for example:
- in the event of an urgent reason justifying summary dismissal ;
- if a sick employee culpably fails to cooperate with reintegration;
- in the event of a reorganization or bankruptcy (whereby certain prohibitions on termination cease to apply);
- by mutual consent, often with compensation, laid down in a settlement agreement.
In all these cases, the correct procedure and grounds are decisive.
What are the risks of wrongful dismissal?
If you wrongfully dismiss a protected employee, this can have serious consequences. The employee can reinstatement of employment or financial compensation —think of equitable compensation in addition to the transition payment. The costs can mount up substantially, and there is a risk of reputational damage. Consequently, a careless dismissal is risky not only legally but also financially.
Frequently asked questions about protection against dismissal
Am I allowed to dismiss a sick employee?
In principle, a prohibition on termination applies during the first two years of illness. Exceptions exist, for example in the event of business closure or if the employee fails to cooperate with reintegration due to their own fault. Dismissal due to the illness itself is not permitted.
Does the prohibition against termination also apply to a temporary contract?
A temporary contract ends by operation of law on the end date; the prohibition on termination does not prevent it from expiring. If you wish to terminate a temporary contract prematurely, the prohibitions on termination do play a role. When not renewing, pay attention to the notification obligation.
Can dismissal protection be circumvented with a settlement agreement?
A settlement agreement is based on the employee's consent, so there is no question of circumvention. However, an employee with a prohibition on termination may choose to agree. Pay attention to the cooling-off period and the unemployment benefit aspects; a sick employee who agrees may jeopardize their entitlement to benefits.
Assistance with dismissal and dismissal protection
Dismissal law is complex and the risks are significant. Therefore, seek legal advice before proceeding with a dismissal. The (corporate) employment law specialists at MKB Juristen assess the grounds for dismissal and guide you through the correct procedure. Schedule a no-obligation intake and avoid a costly mistake.
