On sick leave and your employer wants you gone: what now?

You have been ill for some time, for example for more than four consecutive weeks, and you notice that your employer wants to part ways with you. This is a common situation. The reasons vary, but the basic principle is clear: during illness, you are well protected. Your employer cannot simply dismiss you. It is, however, important to know your rights and obligations, and where the pitfalls lie.

You are protected against dismissal

If you are ill, you are protected against dismissal for up to two years and you are entitled to continued payment of salary. During that period, you and your employer work together towards the fastest possible recovery, with the aim of you returning to work.

Often, however, the work itself is part of the problem, or even the only reason you are ill. In that case, there is effectively a conflict with your employer or your manager. This is also referred to as an irretrievably damaged employment relationship.

What does illness mean for your day-to-day situation?

• You are not required to work, but you must cooperate in your recovery and comply with the arrangements made with the company doctor (bedrijfsarts).
• Being ill is not a holiday. If you wish to go on holiday, you discuss this in advance and take holiday leave.
• Your salary may drop considerably. By law, your employer is only required to continue paying 70% of your salary. In the first year, the statutory minimum wage applies as a floor; in the second year, it no longer does. Moreover, the statutory 70% only applies up to a maximum amount. With a high salary, your income may therefore fall sharply, and in the second year it can turn into a genuine free fall. Many employment contracts and collective labour agreements provide for more, for example 100% in the first year. So check carefully what has been agreed in your case.

What do you need to tell your employer?

Less than you think. Information about your illness is covered by your privacy. What is wrong with you is something you discuss only with the company doctor. Towards the company doctor, however, you must be open and honest.

You only inform your employer:

• that you are ill;
• how long you expect to be ill;
• where you are staying, if that is not your home address.

If you wish to travel abroad during your illness, you must discuss this first. You may not simply do so.

The role of the company doctor and mediation

If there is clearly an employment conflict, the company doctor should recognise this. The company doctor will then often recommend mediation.

In mediation, you engage in a constructive dialogue with your employer, guided by a mediator: an independent intermediary. Many employees find this daunting, because they then have to talk to the manager or employer with whom they are in conflict. Nevertheless, it often works well. The mediator acts as a kind of referee who ensures that the conversation proceeds fairly.

Mediation usually leads to one of two outcomes:

• The conflict is resolved, and you can return to work.
• You part ways, and a settlement is reached. You then negotiate with the mediator overseeing the process. That is often helpful, as negotiations with an employer can become quite heated.

Your employer offers a settlement agreement during your illness

It is common for an employer to offer a settlement agreement (vaststellingsovereenkomst, or VSO) while you are ill. That may be a solution if you want to leave anyway. But it is also risky.

If you leave employment while ill, you are not entitled to unemployment benefit (WW), because you are not available for work. You would then have to rely on a benefit under the Sickness Benefits Act (Ziektewet). However, because you consented to the end of your continued salary payment by signing the settlement agreement, you run the risk that the UWV will refuse or reduce that benefit.

Never simply sign a settlement agreement during illness. Make sure the arrangements and the timing are right.

You want to leave, but there is no settlement agreement

This is also common: you are ill, you want to leave, but your employer is not offering anything.

Resigning yourself is then your worst option. If you resign, you are not entitled to a transition payment and not entitled to unemployment benefit. That is your worst-case scenario.

It is better to initiate a settlement agreement. That is our specialism: we sit down with your employer and set out the options for both parties. A good settlement is possible even during illness. It is usually not the settlement with the highest severance payment, but you can agree, for example:

• a termination date that gives you time to recover;
• a severance payment;
• sound arrangements, so that your benefit entitlement is safeguarded as far as possible.

What do you do now?

1. Do not sign anything and do not commit to anything, even if a settlement agreement is on the table.
2. Discuss your situation honestly with the company doctor, and ask about mediation if the conflict is at the heart of the matter.
3. Seek advice before you take any step. Sequence and timing are especially important in the case of illness.