Dutch Supreme Court rules three times on the ban on termination during illness
The ban on termination during illness continues to occupy those involved in employment law. The Dutch Supreme Court has ruled on this issue three times in 14 months:
- In 2022, the Supreme Court ruled that the ban on termination does not apply if the employee reports in sick after the UWV (the Employee Insurance Agency) has rejected permission to terminate but before the application to terminate has been submitted to the Subdistrict Court (Dutch Supreme Court 18 February 2022, ECLI:NL:HR:2022:276);
- In early 2023, the Supreme Court ruled on whether the ban on termination applies to temporary workers working under an agency clause. The Supreme Court found that the agency clause may also lead to termination of the agency agreement if the agency worker is ill, provided that the hirer does actually apply for termination of the posting of the agency worker (see our blog on https://clintlittler.nl/blog/Dutch-Supreme-Court-secondment-provisions-may-be-invoked-when-a-secondment-worker-calls-in-sick); and
- Recently, the Supreme Court discussed the scope of the exception to the ban on termination. This exception states that the ban on termination does not apply if the application to terminate does not relate to circumstances to which the ban on termination relates.
The scope of the ban on termination during illness
In this blog, we will be looking at the third case. That case involved a scientific researcher at Erasmus University Medical Centre Rotterdam. During the study, discussions arose about its scientific integrity. This led to a conflict and the employee subsequently called in sick.
The Subdistrict Court terminated the employment contract due to the working relationship having broken down. On appeal, the Court of Appeal ruled that the exception to the ban on termination applied because the employment relationship had already broken down before the sick report. The Court of Appeal found that the employee’s argument, that she was already suffering from a burnout before she reported in sick and that that was what had caused the conflict, had been insufficiently substantiated by the employee.
Advocate General’s opinion: the exception applies
In cassation, the employee argued that the Court of Appeal had interpreted the exception to the ban on termination too broadly. In the ‘opinion’ to the Dutch Supreme Court, the Advocate General considered that the, in principle, absolute nature of the ban on termination during illness had to be taken as the starting point, so that it could not be ignored too readily. The ban on termination during illness actually aims to protect the employee from being dismissed due to illness and from having a shorter time to find other work. It also aims to safeguard the employee from the psychological pressure that a notice of termination during illness can cause, the A-G said.
This means that judges should examine whether the application to terminate can be fully abstracted from the facts and circumstances to which the ban on termination during illness relates. What needs to be assessed is whether the facts and circumstances underlying the application to terminate (also) constitute reasonable grounds to terminate if the incapacity for work is not taken into account. According to the A-G, the Court of Appeal did examine this properly and the grounds for appeal in cassation ought therefore to be dismissed.
Dutch Supreme Court adopts the Advocate General’s opinion
The Supreme Court dismissed the grounds for appeal in cassation under section 81 of the Judicial Organisation Act (Wet op de rechterlijke organisatie ‘RO’). This means that it adopted the A-G’s opinion without providing its own reasoning.
In a nutshell, the ban on termination during illness has broad effect. It is only when there is no connection at all between the illness and the reasons for the dismissal that the exception to the ban on termination can be applied.