Recurrent absence due to illness grounds for dismissal
Recurrent, short-term absence due to illness is one of the so-called grounds for dismissal referred to in Section 7:669(3) of the Dutch Civil Code. For this ground for dismissal, you should submit an application to the subdistrict court.
Article 7: 669 paragraph 3 c BW
1. The employer may terminate the employment contract if there are reasonable grounds for doing so and it is not possible or reasonable to reinstate the employee in another suitable position within a reasonable period of time, either with or without training. Reinstatement is in any case not an obvious choice if the employee can be blamed for his actions or omissions as referred to in paragraph 3 under e.
2. (…)
3. Reasonable cause as referred to in paragraph 1 shall mean:
(…)
c. the regular inability to perform the stipulated work due to illness or disability of the employee with unacceptable consequences for the operation of the business, provided that the regular inability to perform the stipulated work is not the result of insufficient care on the part of the employer for the working conditions of the employee and it is plausible that no recovery will take place within 26 weeks and that the stipulated work cannot be performed in a modified form within this period;
Requirements for dismissal due to regular absence from work
The employer must make it plausible that the regular absenteeism has unacceptable consequences for the operational management. This could include a disproportionate amount of pressure on colleagues who constantly have to take over work, serious problems finding replacements, stagnation of a production process, etc.
There must be no connection between the regular absenteeism and insufficient care by the employer for the working conditions.
Furthermore, the employer must make it plausible that no significant improvement can be expected within 26 weeks and that the stipulated work cannot be performed in a modified form during that period either. In the situation where the absenteeism can be reduced by an adjustment of the workplace or the working hours, this cannot be a reason for dismissal. With the request for dissolution, the employer will have to submit an expert opinion from the UWV on this (Section 7:671b, subsection 4, BW).
Tips / checklist
- Check if there is no culpable action instead of illness, for example if the employee always violates the sick leave protocol or always reports sick after the weekend. If this is the case, dismissal on this ground is more likely.
- Check whether the cause of the absence is (partly) work-related and, if so, whether an adjustment of the working hours or the workplace leads to a reduction of the absence.
- Discuss with the employee that the absence has a disruptive effect on business operations and look for solutions together.
- If possible, keep a log of the problems the absence causes to the business.
Reimbursement
As a rule, the employee will be entitled to transitional compensation, unless he can also be blamed. If the employer is at fault, fair compensation is also possible.
