Dismissal due to regular sickness absence often unsuccessful

Article 7:669 paragraph 3 sub c of the Dutch Civil Code lists the grounds that an employer can submit to the UWV or the subdistrict court judge to terminate the employment contract. One of these grounds is “regularly unable to perform the stipulated work as a result of illness or defects of the employee with unacceptable consequences for the business operations…”.

On September 3, 2021, the District Court of The Hague ruled in a case in which the employer based the request to terminate the employment contract on this ground. The ruling shows why a dismissal on this ground often has no chance.

What was going on?

The employee has been working as a car technician at a car dealership with several branches in the Netherlands since 2013. He was employed at a local facility and was part of a team of five employees working in the workshop. In 2017 he had called in sick 4x (104 hours in total), in 2018 8x (173 hours in total), in 2019 23x (468 hours in total) and until July 10, 2020 13x (400 hours in total). The employer had requested an expert opinion from UWV and it followed from that opinion that UWV was of the opinion that there was frequent absenteeism and that this situation was expected to last longer than 26 weeks.

What did the court rule?

The court first establishes that there is frequent absenteeism within the meaning of article 7:669 paragraph 3 sub c BW. The follow-up question is whether this absenteeism leads to unacceptable consequences for the employer's business operations. According to the court, that is not the case. The employer had stated that customers would be dissatisfied with the workshop activities of the branch, but could not substantiate this, according to the court. In addition, the court considers that a company of a size such as that of this employer (with several branches in the region and throughout the Netherlands) can in principle be expected to take care of absenteeism company-wide. The fact that it is not possible within its organization to provide replacement from another location, because there is a large group with all kinds of different car brands and a mechanic who works for one car brand at one location is not as easy as a mechanic can work for the other. According to the court, a different car brand at a different location has not become plausible. The employer was also unable to demonstrate that there was a (serious) financial disadvantage. The court therefore rejected the request for dismissal.

Conclusion

This court decision once again makes clear that – certainly for larger employers – it will not be easy in the Netherlands to dismiss an employee on the basis of frequent absenteeism. Proof of the high level of absenteeism due to illness is often not the problem, but proof of the unacceptable consequences for the employer's business operations is often an unviable route.

If you have any questions about absenteeism and dismissal, please do not hesitate to contact one of the specialists at Van Bladel Advocaten via (+31) 030-2203111 or info@vanbladeladvocaten.nl