Termination of employment contract still possible during illness?

There are several legal prohibitions on termination, including the prohibition on dismissing an employee during illness. In principle, the employment contract cannot be terminated during illness. However, recently, the subdistrict court terminated an employment contract during illness, as it was deemed to be in the employee’s best interest. When is this possible? This article explains this ruling.

What was at stake?
The employee had worked for the employer as a policy advisor since 2007. From 2020, tensions arose between the employer and employee. The employee applied internally for another position but was rejected twice. This led to accusations of discrimination, as well as threats of complaints and compensation claims.

In addition, a planned performance review did not go as intended, as the employee objected to its content, resulting in an official warning.  Soon after, the employee reported sick and threatened suicide, which led to a home visit by the police, which the employee did not appreciate.

On the advice of the company doctor, the employee was assigned by a coach, but the coach terminated her assignment due to the employee’s inappropriate behaviour. The employer then decided that the employee should work from home, but the employee refused. A mediation process failed to resolve the situation.

Eventually, the employer requested the subdistrict court to dissolve the employment contract due to a disrupted working relationship.

Court’s ruling
The subdistrict court ruled that a productive working relationship between the employee and his colleagues had become impossible due to ongoing conflicts and difficult reintegration.

While the prohibition on dismissal during illness was at issue, the subdistrict court determined that the ban could be lifted in this case due to exceptional circumstances that justified the termination of the employment contract. In this case, the employee’s interest outweighed the ban on dismissal. The court considered the following:

• The employment relationship had completely broken down;
• The employee is now receiving WIA benefits;
• There is no realistic prospect of the employee returning to work in their previous role.

For these reasons, the judge ruled that termination of the employment contract was in the employee’s interest, partly to prevent the creation of a ‘dormant employment contract’.

What does this mean for practice?
A request for dissolution of the employment contract during illness usually has little chance of success. However, exceptions can be made under exceptional circumstances. If dismissal during illness is in the employee’s interest, as was ruled in this case, this may justify termination of the employment contract. Incidentally, we cannot escape the impression that in this case, the employer’s interest in ending the employment, was also taken into account.