Termination during illness: still possible, but not without risk

A recent ruling by the district court in Gelderland (ECLI:NL:RBGEL:2025:11357) shows that the principle of 'no dismissal during illness' is not absolute. In this case, the district court ruled that termination of the employment contract is possible even during incapacity for work, if there is a serious and lasting disruption of the employment relationship and continuation would hinder the employee's recovery.

Termination of an employment contract during illness can only take place if there is a reasonable ground for termination and this ground is not related to the illness. In principle, the prohibitions on termination prevent termination during illness. However, this case shows that termination during illness is also possible if the circumstances are of such a nature that termination of the employment contract is also in the interest of the employee.

In this case, the employee was on long-term sick leave, partly as a result of an escalated labour dispute. The employer repeatedly tried to initiate termination of the employment contract, put pressure on the employee to conclude a settlement agreement (even though it was clear that the employee did not want to and could not do so because of her entitlement to benefits), did not sufficiently follow the advice of the company doctor, did not focus on reintegration in the second track and made wage payment dependent on interviews that had been advised against by the company doctor. In addition, the employer failed to pay the wages (on time) on several occasions.

The district court emphasised that the prohibition on termination during illness applies in full in this situation, because the labour dispute and the illness are closely intertwined. The employer failed to demonstrate that the reason for termination was unrelated to the employee's illness, which meant that the statutory exception did not apply. Nevertheless, the court proceeded to terminate the employment contract. The decisive factor was that continuing the employment would hinder the employee's recovery and that termination was therefore also considered to be in her interest. Under these circumstances, despite the prohibition on termination, termination can take place on the grounds of a seriously and permanently disrupted employment relationship (the so-called g-ground).

Because the employment contract was terminated at the employer's request, the employee was entitled to a severance payment. In addition, the district court awarded fair compensation of €10,000. The court ruled that the employer had acted in a seriously culpable manner, including by systematically ignoring the advice of the company doctor, continuing to insist on termination during illness and failing to comply with continued payment of wages obligations. The fair compensation is not punitive in nature, but is intended to prevent employers from opting for seriously culpable termination of the employment contract.

Because fair compensation was linked to the termination, but the request for termination came from the employer, the employer was given the opportunity to withdraw the request for termination within a period set by the court.