In certain situations, the law offers employees additional protection against termination. This is the case when a so-called “prohibition on termination” applies. In this blog, we explain what a prohibition on termination is, what rules apply, and what employers and employees need to keep in mind.
What Is the Prohibition on Termination?
An employer may terminate an employee’s employment if (1) there is a reasonable cause and (2) the employee cannot be reassigned to another suitable position. A third and equally important condition is that there must be no prohibition on termination in effect.
The law contains a list of situations in which an employer may not terminate an employee’s employment. This is known as the prohibition on termination. The most important prohibitions on termination are:
- Illness: During the first two years of incapacity for work, the employee is protected against dismissal. This period may be longer, for example, if the UWV imposes a wage penalty.
- Pregnancy: A female employee may not be terminated during her pregnancy, her maternity leave, or the first six weeks following her maternity leave.
- Member of the works council or employee representative body: Members and candidates for the works council enjoy additional protection against dismissal.
- Transfer of a business: An employer may not dismiss employees due to a transfer of a business.
In addition, there are prohibitions on termination in other situations, such as when taking certain types of leave or engaging in union activities. Fulfilling (foreign) military service obligations is also covered by the prohibition on termination.
A prohibition on termination does not provide absolute protection. Therefore, termination is not always impossible even when a prohibition on termination applies.
Can an employee still be terminated due to illness?
Employees also have certain obligations while on sick leave. For example, the employee must, among other things, see the company physician when summoned, cooperate in drawing up an action plan, and fulfill any reintegration obligations. If the sick employee fails to meet these obligations and continues to do so despite warnings, a wage freeze, and/or suspension of wages, this may ultimately constitute grounds for termination. However, the employer must proceed with caution in such cases. Terminating a sick employee always carries risks.
No connection to the prohibition on termination
Despite a prohibition on termination, a dismissal may still proceed if there is no connection between the dismissal and the prohibition on termination. For example, if there is a strained working relationship If the employer can demonstrate that there is no connection to the employee’s illness, dismissal is still possible. Even if an employee engages in serious misconduct—such as committing fraud—a prohibition on termination does not always preclude dismissal. It is not easy for an employer to prove that there is no connection between the prohibition on termination and the dismissal. It is therefore important to seek legal advice in a timely manner.
Furthermore, termination during a prohibition on termination may also arise in the event of a complete cessation of business operations as part of a business-related layoff.
Prohibition on Termination in the Context of a Settlement Agreement (VSO)
The employer and employee may also enter into a settlement agreement even if a prohibition on termination is in effect. However, this requires the employee’s consent.
Entering into a settlement agreement while a prohibition on termination is in effect does carry certain risks. For example, an employee’s right to unemployment benefits, sick leave benefits, or disability benefits may be jeopardized if they sign a settlement agreement while a prohibition on termination is in effect. It is therefore always important to seek legal advice when a prohibition on termination is in effect before signing a settlement agreement.
Prohibition on Termination During Probationary Periods and Temporary Contracts
During the probationary period, both the employer and the employee may terminate the employment contract immediately and without cause. This is permitted even if a prohibition on termination is in effect. The employer can therefore terminate an employment contract with an employee who is sick or pregnant during the probationary period. However, the illness or pregnancy itself may not be the reason for the termination during the probationary period.
The same applies when a temporary contract expires. The employer may choose not to renew a temporary contract with an employee who is sick or pregnant, unless the illness or pregnancy is the reason for the decision not to renew.
In the case of pregnancy, dismissal during the probationary period or the decision not to renew a temporary contract due to the pregnancy constitutes discrimination based on sex. It is up to the employer to prove that there was no discrimination. It is therefore important for employers to thoroughly document and substantiate why they chose to terminate an employee during the probationary period or not to renew a temporary contract.
Advice on Prohibitions on Termination
A prohibition on termination can have significant consequences for the ability to terminate an employment contract. It is important for employers to assess in advance whether such a prohibition applies and what exceptions, if any, may be applicable. Employees are advised to have any termination during a protected period reviewed by a legal professional.
Our employment law attorneys advise employers and employees on notice periods and termination. We are happy to help you identify the options, risks, and next steps, and determine an appropriate strategy.
