Dismissal after 2 years of illness

An incapacitated employee, however unpleasant the personal situation, costs an employer a lot of time and money. This is because dismissal after incapacity for work is not possible in the first two years because of dismissal protection. The employee may not be dismissed for illness during the first two years. The employer is obliged to continue paying wages during this period. Wage payments may be discontinued after two years. It is also possible to proceed with dismissal after two years of illness from this point onwards.

Dismissal in case of occupational disability

Dismissal after two years of illness or an employee who is dismissed due to incapacity for work – also after a period of two years – is legal when the employee can no longer perform the work for which the person was hired. In addition, the employer must have tried to find another position or other work for the employee in question. An employer can also request to terminate the employment contract himself. The employer must comply with this request.

Application for dismissal at UWV

The employer is obliged to help the sick or disabled employee reintegrate within the organisation. Has no progress been made after two years and the person in question cannot return to work? Then the employer is free to dismiss the incapacitated employee. In the case of dismissal after two years of illness, the employer must apply for dismissal for the employee to the UWV, which assesses the application. The UWV must give an employer permission to terminate the employment contract.

When is an employee unfit for work?

An employee is unfit for work when he or she can no longer perform his or her work. Work may be hampered by a physical or mental illness. It depends on the work whether it can still be performed. A (company) doctor can clarify the (physical or mental) condition of the employee.

Upon dismissal after 2 years of illness, an incapacitated employee generally receives WIA benefits. This benefit is awarded when the person is at least 35% incapacitated for work. If an employee does not qualify for WIA benefit after dismissal after two years of illness, the employee can apply for WW benefit.

Reflex effect of notice ban due to illness

An employee is sick or unfit for work if, based on objective criteria, it can be said that performing work is impossible or not allowed. If an employer wants to terminate the employment contract of an employee who is unfit for work before there is dismissal after two years of illness by requesting dissolution on other grounds, the subdistrict court will assess the request for dissolution according to a reflex effect of the prohibition on giving notice. Here, the court considers whether the dismissal request is related to the circumstances covered by a ban on notice during illness.

Reintegration of sick employee

Together with the employee, the employer must make every effort to return to work quickly. Within six weeks of reporting sick, a meeting takes place between the sick employee and the company doctor or occupational health physician. In this meeting, the work that the employee can perform is examined. They also discuss when the employee thinks he or she will be able to resume his or her own work. The doctor’s advice, the problem analysis, describes the employee’s possibilities of returning to work.

Draw up reintegration plan

Within 8 weeks of reporting sick, employer and employee draw up an action plan or reintegration programme. This plan outlines how both parties can together ensure a quick return to work. The employer must examine, among other things, whether the employee can work in his or her own workplace or what adjustments are needed. If this is not possible, it should be examined whether the employee can work in another workplace within the company. This is called reintegration on the first track. Together with the employer, another workplace at another company can also be explored (second-track reintegration).

Keeping a reintegration file

During the reintegration process, employer and employee remain in contact. At least once every six weeks, a status discussion must take place and it must be assessed whether the plan of approach needs to be adjusted. The employer keeps a reintegration file of these talks in which agreements are recorded. In the first two years of illness, the employer is responsible for reintegrating the employee. After this period, the employee concerned receives a call for a WIA examination. A reintegration process lasts a maximum of 104 weeks.

Suitable work in case of illness

Suitable work is work that a long-term sick employee can perform despite an illness. When an employer offers the employee suitable work, the employee must perform this work. However, an employer must take into account the work the employee is required to perform under the employment contract, the work the employee previously performed, the employee’s education and level of education, the employee’s health, salary and travel distance to the employee’s work. Does an employee refuse to perform suitable work? Then the employer may decide not to pay any more wages.

Wage payment obligation ends after two years

After the two years of illness, the employer’s obligation to pay wages ends. If the employer or employee do not opt for dismissal after two years of illness, the employee remains in service. This is called dormant employment. An employer can opt for this if it can be assumed that the employee will recover in the short term or that suitable work will become available. In this case, the employee remains employed, but does not receive a salary. As the employee is not dismissed, no transition compensation is paid to the employee. The existing employment contract remains in force.

In principle, the moment the employee is still unfit for work after two years of illness, the employer no longer has to pay a salary. If the UWV’s assessment shows that the employer has made insufficient efforts with regard to reintegration obligations, the UWV may determine that the employer has to continue paying wages for up to one year longer.

Dismissal after 2 years of illness: prohibition on giving notice

Barring some exceptions and specific situations or agreements, an employee may not be dismissed during the first two years of illness. For this period, the employment contract is subject to a ban on notice. The statutory notice period expires after two years of illness. Dismissal after two years of illness is possible if both parties agree or by applying to the UWV for a dismissal permit.

Justified interest of the employer

An employee can also request dismissal himself. Does the employee request to terminate the contract? If so, the employer is obliged to comply. An exception to this obligation applies when the employer has a legitimate interest in continuing the employment. This provision applies, for example, in situations where the employer offers or sees reintegration opportunities for the person in question.

Compensation for continuing to pay wages

In case of dismissal after 2 years of illness, the employee is entitled to a transition payment, despite continuing to pay salary during the employee’s absence. A compensation scheme for transition compensation is available for employers. This central government scheme prevents employers from facing an accumulation of costs after continuing to pay wages to a sick employee for two years. This scheme, which came into force in October 2020, also applies to already paid transition compensation after terminating an employment contract after 2 years of illness.

Intervention in transition compensation

To be eligible for compensation of the transition compensation, several conditions have been drawn up. Obviously, a transition compensation must have been paid to the employee and the employee was legally entitled to this transition

compensation. In addition, the employee must have been dismissed after two years of illness. An employer must also be able to submit a dismissal permit from the UWV, have received a dissolution order from the court or, in the case of dismissal by mutual agreement, prove the termination agreement.

Requesting compensation from UWV

To qualify for the compensation transitional allowance in case of dismissal after two years of illness, an employer must apply for the compensation to the UWV no later than six months after paying the full transitional allowance. The UWV assesses whether the employer is entitled to compensation of the paid transitional compensation.

Termination of employment contract during illness

In a number of cases, termination of the employment contract during illness or before dismissal after 2 years of illness is permissible. What is important here is that the incapacitated employee is not dismissed because of the illness. Dismissal during illness is allowed when there is an agreement in the CAO, probationary period or bankruptcy. Also, if the employee does not cooperate in reintegration or behaves in such a way that instant dismissal is appropriate, termination of the employment contract during the employee’s illness is allowed.

Employees on temporary contracts are subject to the same conditions as employees on permanent contracts. If an employee with a fixed-term contract falls ill, the employer continues to pay 70% of the salary for up to two years. If the temporary employment contract expires during the period of continued salary payment or the maximum period of 2 years is reached, the UWV will take over the salary costs after the end date of the contract. From this point onwards, the UWV is also responsible for support in reintegrating the employee.

UWV gatekeeper’s test

In the case of a dismissal after two years of illness, the UWV checks whether an employer has made sufficient efforts to get a sick employee back to work. If an investigation by the UWV reveals that an employer has failed to do so, the employer may be required to continue paying the employee’s salary for an extra year. This check is called the Gatekeeper’s Test and ensures that an employer is doing everything possible to get a sick employee back to work.

Re-employment within the company

During the Gatekeeper’s Test, the UWV checks whether an employee can return to work within 26 weeks, possibly with adjustments. If an employee can return to work within 26 weeks, the dismissal after two years of illness will not take place. The UWV also examines whether re-employment in another job is possible. To this end, the UWV not only looks at vacancies within the company, but also at structural activities that are currently being performed by temporary workers, self-employed workers or employees with a temporary employment contract.

Legal advice on dismissal during illness

Illness is an unpleasant situation for both employee and employer and can happen just like that. Are you unsure what action to take or what next steps to take? Every situation or termination of an employment contract is different and can be very complex. That is why we recommend you seek legal advice on dismissal after 2 years of illness. Our employment law specialists have extensive experience in entrepreneurship, dismissal law and dismissal procedures. Please contact one of our lawyers for free advice.