Terminating the employment contract of an employee who has been sick for two years is not as obvious as is often thought.
Once an employee has been unfit for work for 104 weeks (leaving aside details such as the wage sanction and voluntary continued payment of wages), the employer's obligation to continue to pay wages expires, as does the ban on giving notice due to illness, but this does not automatically terminate the employment contract.
A valid termination of the employment contract can be effected by entering into a settlement agreement or by termination by the employer. A valid termination requires the permission of the UWV (Article 7:671a paragraph 1 BW).
Permission from the UWV must be requested in writing. The application must meet certain conditions, and before the UWV grants permission, the employer must demonstrate that:
- The (extended) waiting period has passed;
- The waiting period is 104 weeks, but can be extended due to a wage penalty or late WIA application.
- It is plausible that the employee cannot recover for the stipulated work, modified or otherwise, within 26 weeks;
- The employee cannot be reemployed in a suitable position within a reasonable period of time.
Waiting time
Whether the waiting period has been completed is shown by the WIA decision. The employer must send these documents with the application. This generally does not cause any problems.
Recovery within 26 weeks
The question whether it is plausible that the employee can recover within 26 weeks must be answered by the company doctor. The company doctor must draw up an adequate statement, which may not be older than three months and which must contain a prognosis that addresses the question of whether recovery for (modified) stipulated work can be expected. This is also called a "current opinion".
Whether such a statement is issued and whether its content is unambiguous and explicit is not a certainty. This may have to do with the employee's illness/disorder as well as the expertise of the company doctor.
Note: the 26-week period is counted from the date of the decision on the dismissal request. Therefore, if the opinion of the company doctor is already two months old, it must contain an opinion on the chance of recovery within at least 8 months (moment of opinion plus the 26 weeks).
Relocation
The redeployment obligation is the "normal" redeployment obligation of Article 7:669 (1) of the Civil Code. A suitable position exists if it matches the employee's education, experience and capacities, or for which he will be able to become suitable within a reasonable period of time with the help of training.
The reasonable period corresponds to the notice period applicable to the employer and thus depends on the length of the employee's employment.
Reassignment can only be to positions for which a vacancy exists or for which a vacancy will soon occur. Positions filled by "temporary employees" must also be included. In addition, not only vacancies in one's own company should be included, but also vacancies in companies that are part of a group.
Conclusion
To obtain permission from the UWV, the employer has a lot to prove. In some cases this will be easier than in others. Therefore, it can't hurt to first explore the option of terminating the employment contract by mutual agreement. Should a settlement agreement be reached, the employer can still claim compensation for the transition fee and the employee's WIA benefit (if awarded, of course) is not at risk.
It is advisable to have the settlement agreement audited, to avoid errors that prevent compensation from being obtained. For an audit of your settlement agreement or application to the UWV, contact one of our employment law specialists.
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