Are you partially incapacitated for work and has your employer offered you a settlement agreement? If so, you are facing a complex decision. Partial incapacity for work makes the situation legally more complicated than an ‘ordinary’ dismissal, because your benefit entitlements and reintegration obligations play a significant role. It is therefore important that you understand the consequences before you sign anything.
What exactly is partial incapacity for work?
Partial incapacity for work arises when, due to illness or injury, you are no longer able to work fully, but you are still able to work to some extent. Consider, for example, someone who can only work four hours a day instead of eight due to back problems.
After two years of illness, the UWV assesses whether you are entitled to a WIA benefit. Those who are between 35% and 80% incapacitated for work fall under the WGA (Werkhervatting Gedeeltelijk Arbeidsgeschikten – Return to Work for the Partially Incapacitated). This is a specific category with its own rules, and that is precisely where difficulties arise with a settlement agreement.
What changes when you sign a settlement agreement?
A settlement agreement (also known as a VSO or termination agreement) means that you leave employment by mutual consent. This may sound straightforward, but the consequences can be significant if you are partially incapacitated for work.
Consequences for your WGA benefit
If you are already receiving a WGA benefit and are still partially working for your employer alongside it, signing a VSO may affect the amount of that benefit. The UWV takes into account your income alongside the benefit. Once that income falls away, the UWV will recalculate your benefit situation.
Furthermore, the UWV may rule that you have terminated the employment contract in a manner that is ‘your own fault’. This can lead to a sanction on your benefit, such as a temporary reduction. Whether this actually occurs depends on the circumstances of your specific case.
Consequences for your reintegration process
For as long as you remain employed, your employer is obliged to invest in your reintegration. That obligation lapses the moment the employment contract ends. This means you may lose support, workplace adjustments, or a suitable role. It is important to be aware of what you are giving up if you agree to a VSO.
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Plan a conversationWhat should you look out for during negotiations?
A settlement agreement is rarely an off-the-shelf document that you simply have to accept. There is almost always room for negotiation. In the case of partial incapacity for work, pay attention at the very least to the following:
- Transition payment: Check whether the offered compensation has been calculated correctly. In principle, you are always entitled to this, even in the case of partial incapacity for work.
- End date: Ensure that the employment contract does not end sooner than necessary, so that you make full use of the three-week cooling-off period.
- Neutral reason for dismissal: Have it recorded that the dismissal is not attributable to you. This is important for the UWV’s assessment in the event of a potential application for unemployment benefit (WW) or WGA benefit.
- Benefit entitlements: Check with the UWV in advance what the consequences are for your current or future benefit.
- Additional compensation: In cases of partial incapacity for work, it is sometimes possible to negotiate a higher payment, particularly if your employer has not fully met their reintegration obligations.
- Cooling-off period: You are legally entitled to three weeks to withdraw from the agreement after signing. Make use of that time.
Is your employer permitted to offer you dismissal when you are partially incapacitated for work?
Your employer may offer you a VSO, but cannot compel you to sign it. As long as you are ill, a dismissal prohibition applies in principle. This protection safeguards you against unilateral dismissal, but does not prevent you from consenting to a termination yourself.
That said, there are situations in which it may be logical or even sensible to agree, for example when reintegration is no longer realistic or when an attractive settlement is on offer. The key is that you make a well-considered decision based on complete information.
For a broader overview of everything relating to your rights during illness and a termination agreement, we recommend that you also read the page Settlement agreement during illness: everything you need to know.
Frequently asked questions
Will I lose my WGA benefit if I sign a settlement agreement?
Not automatically. The UWV assesses whether you caused the termination through your own fault. If there is a good reason and the reason for dismissal has been recorded as neutral, the risk is smaller. However, always have this assessed by a specialist.
Am I entitled to unemployment benefit (WW) if I am partially incapacitated for work?
That is possible, but depends on your situation. If you were working partially alongside your WGA benefit and that work comes to an end, you may be able to apply for WW for the lost portion. Consult the UWV or an employment lawyer for advice on this.
Can I negotiate the content of the settlement agreement?
Yes, absolutely. A VSO is always a negotiating document. Particularly in cases of partial incapacity for work, there are often opportunities to negotiate better terms, such as a higher payment or a longer notice period.
We're happy to help you brainstorm ideas. For advice tailored to your specific situation, we'd be happy to sit down with you. No rights can be derived from the content of this page and it may contain inaccuracies.
