Termination of Employment Contract during Illness is Upheld

An employee who had agreed to her dismissal during illness and who was not entitled to a Sickness Benefit for that reason, could not nullify the agreement to terminate the employment contract because of an error. Since she was assisted by a lawyer, the employer did not have to inform her about the consequences of an employment contract termination during illness.
As the result of a fall down the stairs back home, an employee of a feed mill fell ill at the beginning of 2018. About six months later, the employee's reintegration could be started. This was also the start of negotiations in August 2018 on termination of the employment contract. Ultimately, in November 2018, a settlement agreement was reached, in which the employee declared that she was fit for work again and that the employment contract would be terminated per 1 March 2019.
On 30 January, 2019, the employee reported sick.
Then, she applied for the Sickness Benefit from the UWV. The UWV, however, referred her to the employer because the employer was a self-insurer. The Occupational Physician, involved by the employer to assess whether the employee was ill, decided that she was not ill.
When the employee objected to the UWV against this decision, she was, as yet, considered incapacitated for work.
Subsequently, the employer applied to the UWV for a measure involving rejection of the Sickness Benefit on account of having committed a prejudicial act: the employee was not allowed to cooperate with the termination of the employment contract during her illness.
The UWV then imposed the requested measure. The employee’s objection to the UWV and her appeal to the Court did not change that decision.
Then, the employee decided to target the employer.
She argued that the settlement agreement, terminating the employment contract, had been negotiated under the influence of an error. She also asked the UWV for an expert opinion about the employer's reintegration efforts. In response, the UWV held that the guidance of the employee by the occupational physician had not entirely been adequate. Subsequently, the employee partially nullified the settlement agreement concluded and requested continued payment of her wages. When the employer did not pay the wages, the employee submitted the wage claim to the Sub-district Court.
The Sub-district Court considered that a settlement agreement is intended to end or prevent uncertainty about a dispute. According to the Sub-district Court, this implies that a request for dissolution of a settlement agreement because of an error shall be handled with restraint.
The Sub-district Court held the opinion that, in this case, there was insufficient reason for dissolution of the settlement agreement. According to the Sub-district Court, the fact that there may have been shortcomings in the reintegration was no longer relevant, because the parties had actually left the reintegration process in order to discuss the termination of the employment contract. Moreover, the employee herself had stated that she was on the road to recovery. The employer had not exerted any undue pressure on the employee by addressing her about her performance, because he had already done so before. The employer could not be blamed for not having sufficiently informed the employee about the consequences of a dismissal during illness either, since the employee had been assisted by a lawyer specialising in employment law. In response to a question by the employee the lawyer had answered that the provision in which the employee had stated that she was fit for work was a customary provision in settlement agreements terminating an employment contract.
For the same reasons as those why there was no error on the part of the employee that would justify dissolution of the settlement agreement, according to the Sub-district Court, there was no obligation on the part of the employer either to pay compensation for having acted contrary to good employment practices, for abuse of circumstances by the employer or for overriding the settlement agreement on the grounds of reasonableness and fairness.
Therefore, the Sub-district Court rejected the employee's wage claim.

Dismissing a sick employee is extremely difficult. During the first two years of illness, it is prohibited to terminate an employment contract. Dissolution of the employment contract by the Sub-district Court is only possible if the reason for the dissolution is not related to the illness. That is why employers often want to terminate an employment contract by concluding a so-called settlement agreement. This requires the employee’s willingness to cooperate. Sometimes, employees are prepared to do so for an appropriate compensation. And the employer is often prepared to pay a substantial compensation because it may enable considerable savings on the costs for the employee's incapacity for work, such as continued wage payment, reintegration and - for medium-sized and large employers - possibly the costs of a WGA (partial work disability) benefit. But these are precisely the reasons why an employee is not allowed to cooperate in the dismissal during his/her illness.
If the employee cooperates anyway, he/she loses the entitlement to the Sickness Benefit, be it not to any WIA benefit following the Sickness Benefit. And a sick employee is not entitled to an unemployment benefit because he/she is not available for the labour market due to his illness.
In order to avoid this problem, employers often try to have the employee declare in the settlement agreement that he/she is no longer incapacitated for work. But that is also where things usually go wrong, once the employee subsequently reports ill and asks for a Sickness Benefit. In the absence of a medical substantiation of the recovery report by the occupational physician, it is usually quite easy for the UWV insurance doctor to state that the employee has never recovered. This implies that there is no legal entitlement to the Sickness Benefit because the employee cooperated in the dismissal during illness.
If the employee had not been assisted by a lawyer in the above case, the Sub-district Court would undoubtedly have annulled the settlement agreement, since the employer would then have been obliged to inform the employee about the consequences of cooperating in a dismissal during her illness. And then, the employee would probably not have cooperated.
The only reason why, in the above case, the employer succeeded in terminating the employment contract during illness was that the employee was assisted by a lawyer who apparently was not aware of the consequences of cooperating in a dismissal during illness for the entitlement to a sickness benefit.
Now, the employee has to make do with a claim for damages against the lawyer she had involved.