The employee invoked the ban on dismissal during illness and claimed fair compensation. The Arnhem-Leeuwarden Court of Appeal ruled, however, that the disruption of the working relationship was unrelated to the sick leave and that the employer had not acted seriously culpably. No fair compensation was therefore awarded.
Facts
The employee started working at a notary practice in November 2020, in the role of notarial clerk, for 40 hours a week. From late 2021 onwards, she carried out her work mainly from home. The employer repeatedly indicated that the employee needed to work (largely) from the office again. Despite agreements and repeated requests, the employee kept refusing to do so.
In March 2023, the employer instructed the employee to work fully from the office starting 13 March. The next day, the employee reported sick. In the period that followed, disputes arose over the plan of action, whether reintegration should take place from home or the office, and wages were suspended twice. Mediation did not lead to a solution.
In May 2024, the subdistrict court was asked to dissolve the employment contract. The employee contested this, relying, among other things, on the ban on dismissal during illness. She also claimed a transition payment, outstanding wages, and fair compensation for seriously culpable conduct by the employer.
Ruling of the subdistrict court
The subdistrict court ruled that a seriously and permanently disrupted working relationship existed, meaning the employer could not reasonably be required to continue the employment contract. Redeployment was not a realistic option. According to the subdistrict court, the ban on dismissal during illness did not stand in the way of dissolution.
The employment contract was dissolved as of 1 September 2024. The employer was ordered to pay the transition payment and outstanding wages, but the claim for fair compensation was refused.
Ruling of the Court of Appeal
On appeal, the employee again argued that the dissolution conflicted with the ban on dismissal during illness, and that the employer had acted seriously culpably.
The Court of Appeal did not follow all of the subdistrict court’s reasoning, but reached the same outcome:
Ban on dismissal during illness
The Court of Appeal emphasised that, although the ban on dismissal applies, dissolution is possible where the ground for dissolution is unrelated to the illness. According to the Court of Appeal, the cause of the disrupted working relationship lay in the long-running conflict over working from home. These circumstances could be “abstracted” from the employee’s medical situation. The reliance on the ban on dismissal therefore failed.
No seriously culpable conduct
The Court of Appeal noted that the threshold for seriously culpable conduct is high. Insisting on office attendance fell within the employer’s instruction right and did not constitute culpable conduct. The unjustified wage suspensions were careless, but not, in context, serious enough to justify fair compensation.
The Court of Appeal refused the request for fair compensation and ordered the employee to pay the costs of the appeal.
Conclusion
This ruling illustrates that an employment contract can still be dissolved during illness, provided the ground for dissolution (such as a permanently disrupted working relationship) is unrelated to the incapacity for work itself.
For employers, this ruling confirms the importance of exercising the instruction right carefully: reasonable requests to return to the office fall within the scope of Section 7:660 of the Dutch Civil Code. For employees, the ruling makes clear that reliance on the ban on dismissal only succeeds where a genuine link exists between the illness and the ground for dismissal put forward.
