Redundancy dismissal in Eindhoven whilst on sick leave. What are your rights?

Are you facing dismissal for business-economic reasons during illness? Being ill at the moment your employer carries out a reorganisation is a doubly uncertain situation. Fortunately, the law offers you, as an ill employee, strong protection, even in cases of Reorganisation and redundancy in Eindhoven. Nevertheless, there are exceptions and pitfalls that you must be aware of before you agree to anything.

The prohibition on dismissal during illness also applies during reorganisations

One of the most important rules in Dutch employment law is the prohibition on dismissal during illness. This prohibition also applies when your employer wishes to reorganise and puts forward a business-economic reason for doing so. In concrete terms, this means that an employer cannot, in principle, terminate your employment contract while you are ill, regardless of the reason for the dismissal.

Is your role selected for dismissal on the basis of the reflection principle (afspiegelingsbeginsel), but are you ill at that time? In most cases, the employer must then put forward the next colleague in line for dismissal, not you. Your illness effectively places you temporarily outside the dismissal queue.

When do exceptions to this prohibition apply

The prohibition on dismissal is strong, but not absolute. There are situations in which an employer may still proceed with dismissal, even if you are ill. The best-known exceptions are:

• Reporting sick after the dismissal application: If you become ill after your employer has already applied to UWV for a dismissal permit, the prohibition on dismissal does not apply. This rule prevents employees from strategically reporting sick in order to avoid dismissal.
• Full closure of the business: If the company is closing down entirely and there are no sister companies within a group, the prohibition on dismissal also lapses. If it is merely a partial reorganisation, the protection continues to apply as normal.
• Recovery expected within four weeks: If the occupational health physician can demonstrate that you are likely to recover within four weeks of the UWV decision, UWV may nonetheless grant a dismissal permit. Notice may only be given once you have actually recovered.
• Na twee jaar ziekte: If your incapacity for work lasts two years or longer, the prohibition on dismissal lapses and your employer may apply to UWV for a dismissal permit.
• Na faillissement: In the event of bankruptcy, all prohibitions on dismissal lapse and the liquidator may dismiss all employees.

Reintegration does not stop because of the reorganisation

A reorganisation does not alter your employer's reintegration obligations. These continue as normal, even if your position has been declared redundant within the organisation. When assessing a WIA application, UWV examines whether sufficient reintegration efforts have been made, both for a return to your own or adapted role (first track) and with a different employer (second track).

If your employer falls short in those efforts, UWV may impose a wage sanction. This means that the employer must continue paying your salary for up to one additional year after two years of illness, and may not proceed with dismissal during that period. In a reorganisation context, this can create additional tension: the employer wishes to reduce costs, yet the reintegration standard continues to apply unchanged.

Redeployment and reintegration sometimes overlap

In cases of dismissal on economic grounds, a redeployment obligation applies: your employer must investigate whether suitable work is available, with retraining if necessary. At the same time, the reintegration process on account of illness continues. In practice, these two tracks frequently become entangled.

Redeployment concerns the question of whether dismissal can be avoided by means of a different role within the organisation. Reintegration concerns a return to work within your medical capabilities. Both obligations exist alongside each other and are not interchangeable. If your employer claims that redeployment is not possible, it is advisable to investigate for yourself which positions were available and whether they would have been suitable for your situation.

Do not sign a settlement agreement without knowing this first

During a reorganisation, employers sometimes offer employees who are on sick leave a settlement agreement (VSO). This can sometimes appear attractive, particularly if a payment is attached to it. However, signing during illness carries a risk in most cases.

In concrete terms: if you are still on sick leave on the end date of the agreement, you will in most cases be unable to receive unemployment benefit (WW), because you are not available to the labour market. A Sickness Benefit (Ziektewet) payment is also not guaranteed if you voluntarily cooperated in your own dismissal. Furthermore, if your illness continues for a prolonged period, your WIA entitlements may be jeopardised because the reintegration process was terminated prematurely.

Practical points to consider when you receive a VSO while on sick leave:

• Never sign immediately; you are legally entitled to fourteen days in which to reconsider after signing.
• Always have the VSO assessed by an employment lawyer before you sign.
• Check that the transition payment has been calculated correctly and that the employer's initiative is clearly stated in the text, so that benefit entitlements are not put at risk.
• Look carefully at the end date: if you are still ill at that point, the consequences for your income are often greater than you might expect.
• Check whether redeployment possibilities have genuinely been explored, as this is a requirement for a valid dismissal on economic grounds.

Help with dismissal for business-economic reasons during illness

Being ill and facing a reorganisation at the same time is a situation in which many legal rules apply simultaneously. At Arbeidsjurist Eindhoven we know the local labour market and business practice in Brabant. We will look at your specific situation together: is the dismissal procedure correct, has the prohibition on dismissal been properly observed, has redeployment been seriously explored, and what would a potential settlement agreement mean for your income and benefits? Contact us without obligation for an initial consultation. You do not have to face this alone.

Frequently asked questions

Can my employer dismiss me during a reorganisation if I am ill?

In most cases, no. The prohibition on dismissal during illness also applies to dismissal on economic grounds through a reorganisation. Your employer generally cannot obtain a dismissal permit from UWV for as long as you are ill and the prohibition on dismissal applies. There are limited exceptions, such as when you became ill after the dismissal application was submitted, when the company ceases trading entirely, or when recovery is expected within four weeks.

What happens to my reintegration if my position is declared redundant?

Your reintegration obligations continue as normal, even if your position has been abolished as a result of the reorganisation. Your employer remains obliged to actively invest in your recovery and return to work. If they fail to do so adequately, UWV may impose a wage sanction and the employer will be required to continue paying your salary for up to one additional year.

What are the risks of signing a settlement agreement while I am ill?

The risks are considerable. If you are still ill on the end date of the agreement, you will in most cases have no entitlement to unemployment benefit (WW) because you are not available for the labour market. A Sickness Benefit payment may also be refused if UWV considers that you voluntarily cooperated in your own dismissal. Always have the settlement agreement assessed by an employment law lawyer first.

Can my employer dismiss me if the company closes down entirely?

Yes, in the event of a complete closure of the business, the prohibition on dismissal during illness does not apply. The reorganisation then affects all employees, including those who are ill. Please note: this must involve a total cessation of the business. If it concerns only a partial reorganisation or the closure of a department, the prohibition on dismissal remains fully in force.

After how many weeks of illness may my employer apply for a dismissal permit?

The prohibition on dismissal during illness applies in principle throughout the first two years (104 weeks) of incapacity for work. Only after that period may your employer apply for a dismissal permit from UWV. If your employer has made insufficient reintegration efforts, UWV may impose a wage sanction and the prohibition on dismissal will be extended by up to one year.

We are happy to think along with you. For advice tailored to your situation, we would be glad to talk. No rights can be derived from the content of this page and it may contain inaccuracies.