Dismissing a chronically ill employee is not done just like that

Dismissing a chronically ill employee is not straightforward: dismissal related to a disability or chronic illness is prohibited discrimination. However, as an employer, you are not stuck indefinitely. Legitimate routes do exist via two years of illness, dismissal by mutual consent, or a UWV dismissal permit. Below, you can read when dismissal is prohibited, when it is permissible, and how to avoid costly mistakes.

Are you allowed to dismiss an employee with a chronic illness?

Not if the dismissal is related to the illness or disability. Relevant are Articles 1 and 4 of the Equal Treatment on the Basis of Disability or Chronic Illness Act. These prohibit discrimination in entering into, offering, or terminating an employment contract on the grounds of a disability or chronic illness. An employee with such a condition may not be treated differently from someone in a comparable situation.

If the employer nevertheless makes a prohibited distinction, this constitutes serious culpability. The subdistrict court judge may annul the termination or order the employer to pay fair compensation.

Example from case law: female employee with lung cancer

A striking example is a dismissal case involving a chronically ill employee (ECLI:NL:RBLIM:2022:8265). She had entered into an employment contract to start at a new company on May 1, 2022, and had already terminated her previous employment contract for that purpose on March 31, 2022. On April 12, 2022, during the notice period, she was diagnosed with an aggressive form of lung cancer. The new employer subsequently terminated the employment contract by invoking the probationary period clause.

The employee went to court and claimed fair compensation, arguing that the dismissal was related to her illness. The employer argued that the dismissal was related to a reorganization.

The subdistrict court judge ruled that the employer had in no way substantiated the business economic circumstances. Consequently, the judge could not assume that this was the reason for dismissal. In the absence of any other explanation, the judge could only conclude that the dismissal was related to the cancer diagnosis. The termination was unlawful and discriminatory. The employee was awarded equitable compensation of 33,000 euros.

The lesson: if an employer cannot objectively demonstrate that dismissal is based on other grounds, the connection to the illness is quickly established — with a hefty price tag as a result.

When can you actually dismiss a long-term sick employee?

There are legitimate ways to part ways with a long-term sick employee:

• After two years of illness. If the employee has been ill or incapacitated for work for two years, dismissal may be considered. During that period, however, you and the employee must do everything possible to achieve reintegration. If the UWV deems the efforts insufficient, it may impose a wage sanction.
• Dismissal by mutual consent. The employer and employee make agreements together, which are recorded in a settlement agreement (termination agreement). Permission from the UWV is not required in this case. Read more about dismissal by mutual consent.
• Dismissal permit via the UWV. If you are unable to reach an agreement together, you can apply for a dismissal permit from the UWV in the event of long-term incapacity for work.

If the employee is dismissed, a transition payment is in principle due. You may be able to apply for compensation for this from the UWV.

Dismissal before two years of illness: the exceptions

In exceptional cases, an employee who has been ill for less than two years may also be dismissed. Consider:

• summary dismissal for urgent cause;
• bankruptcy of the employer;
• a temporary contract that expires: you pay the salary until the end date, do not offer a new contract, and the Sickness Benefits Act takes over;
• a genuine reorganization — but then you must be demonstrably substantiate that the dismissal is solely the result of business economic circumstances and has nothing to do with the illness.

Frequently Asked Questions

What does the wrongful dismissal of a sick employee cost?

In the case of discriminatory dismissal, the judge may annul the termination or award equitable compensation. In the case discussed, the amount involved was 33,000 euros, but the amount depends heavily on the circumstances of the case.

Does the prohibition against termination during illness always apply?

During the first two years of illness, a prohibition on termination applies in principle, with exceptions (such as summary dismissal, bankruptcy, or the expiration of a temporary contract). The prohibition on termination does not apply if the employee only becomes ill after a request for dismissal has been submitted.

Do I have to pay a transition payment after two years of illness?

Yes, in principle, a transition payment is due upon dismissal following long-term illness. Under certain conditions, employers can apply for compensation for this from the UWV.

Am I allowed to dismiss a sick employee due to a reorganization?

That is possible, but you must be able to demonstrate objectively and verifiably that the dismissal is based solely on economic grounds and is unrelated to the illness.

Dismissing a sick employee? Seek advice first

Dismissal cases involving sick employees are legally sensitive, and an incorrect approach can cost you a lot of money. Therefore, ensure you are well informed in advance about the correct procedure and the risks in your specific situation.

Our specialists in illness and reintegration and employment law are happy to assist you. Schedule a no-obligation intake consultation and know where you stand.