Most employers will be familiar with the prohibition on terminating the employment contract during an employee's illness. During the first two years of incapacity for work, it is in principle not allowed to terminate the employment contract with the sick employee and wages must be (partially) continued. But how far does this protection actually extend? The Supreme Court is due to rule on this issue shortly and has already received an opinion from the Attorney-at-law-General. We would like to take you through this.
The issue is as follows. A booth builder loses almost all his work due to the corona crisis. Finally, because all events are cancelled, there is no demand for the booths. As a result, he has to lay off some employees for economic reasons (job cuts). He submits a request for dismissal to the UWV for this purpose, but the UWV rejects it. He then "appealed" to the subdistrict court. However, between the date of rejection by the UWV and the date of submission of the application to the subdistrict court, one of the employees reported sick. The subdistrict court rejected the request for dissolution because of the ban on notice during illness. But is this justified?
Notice prohibition during illness
The prohibition on notice during illness prevents employers from terminating employment contracts in the event of illness. This prohibition on termination does not apply if a request for dismissal from the UWV or an application to the subdistrict court was filed before the inability to work commenced. In this case, the illness arose after the UWV procedure had ended, but before the application to the subdistrict court had been filed. Does this then mean that the subdistrict court must still take the prohibition on notice into account? In the literature and case law, similar situations led to different outcomes. It was sometimes ruled that the exception to the notice prohibition still applied because the employee was not yet sick before the UWV proceedings began. On the contrary, other judges ruled that the dissolution procedure is a new procedure and it was irrelevant whether the employee was not yet sick prior to the UWV procedure.
The opinion
The Attorney-at-law-General first notes that the proceedings at the subdistrict court are not an "appeal" from the proceedings at the UWV. They are two separate procedures that can be run one after the other. In addition, in the past the Supreme Court has assumed a very strict interpretation of the ban on notice during illness. Expanding it is not in line with that chosen strict approach and the legislator's goal. On this basis, the Attorney-at-law-Generaal concludes that the ban on giving notice in a case like this (simply) applies. She also notes that there is already much discussion about this and that the legislator has been advised to adapt rules around continued salary payment during illness. At a time like this, it is not at all obvious to have the court make changes to the law.
If the Supreme Court follows this advice, then in a case like this the ban on giving notice during illness will apply. Incidentally, after such a notification the employer can always have the company doctor or insurance company doctor assess whether the employee is really unfit for work. In this way, abuse through "strategic notifications of illness" can be prevented. However, this may well delay and frustrate the process. For now, we await the Supreme Court's ruling.
