Does termination of a sick employee without permission from the UWV always lead to fair compensation ('billijke vergoeding') for the employee?
Dismissing a sick employee
Dismissing a sick employee with a permanent employment contract is possible if they have been ill for two years and if both parties made reasonable efforts to have the employee return to the workplace.
The employment can be terminated by mutual agreement ('ontslag met wederzijds goedvinden'), or if the employee disagrees with it, by requesting permission from the UWV (the Dutch Employee Insurance Agency).
The employer dismissing a sick employee without permission can risk having to pay fair compensation ('billijke vergoeding') to the employee, as set out in Article 7:681 paragraph 1 under a of the Dutch Civil Code.
The facts of the case
In the case before the District Court of Rotterdam, the employee had been sick for two years. Both parties discussed terminating the employment contract but hadn't reached an agreement. A few months after this, the employer terminated the employment contract by letter, taking the two-month termination period into account. The employee claimed fair compensation because the employer terminated without her agreement and the UWV's permission.
The employer justified not seeking permission from the UWV because there was a consensus between both parties that continuing the employment contract was not possible due to the employee's illness. The claim to fair compensation should be rejected because the employer did not act seriously culpably ('ernstig verwijtbaar').
Fair compensation and the individual circumstances of the case
The court starts by emphasizing that the employer who terminated the employment contract violated the law and that the employee is entitled to fair compensation based on Article 7:681 of the Dutch Civil Code.
Even though the legislative history characterizes dismissal without the written consent of the employee and the permission of the UWV as seriously culpable as such, it is up to the court to assess, based on the individual circumstances of the case, whether and if so, to what extent, granting fair compensation to the employee is reasonable.
The employee had first asked the court to annul the termination of the employment contract but then changed it into a claim for, among others, fair compensation.
Because of this, the court argues that the fair compensation of Article 7:681(1)(a) of the Dutch Civil Code should primarily be seen as an alternative to the legal consequences that would have taken effect if, at the request of the employee, the termination of the employment contract had been annulled. Therefore, fair compensation will have to be related primarily to the financial counter-value restoration of the employment contract would have had for the employee.
What would have happened if the termination had been annulled?
If the termination had been annulled, the employment contract would still have existed. So, after an annulment, the employer would have requested the UWV for permission, seeing as the employee had already been ill for two years and the obligation to pay wages had already ended.
The UWV would then have assessed whether the employee could return to her own or adapted work at the employer within 26 weeks. Based on the case facts, the court concludes that it seems sufficiently plausible that the UWV would have granted the dismissal permission.
No wage claim
So, the annulment of the termination would not automatically have led to a wage claim by the employee; the UWV granting the dismissal permission would mean that the employment contract would have ended anyway. Therefore, the court decided there was insufficient reason to award fair compensation to the employee.
So, in this case, the termination of a sick employee without permission from the UWV did not constitute fair compensation to the employee.