The employee entered into a one-year fixed-term employment contract with DecoZorg B.V. on 30 March 2022 (start date: 1 May 2022). She had reported sick to her then-current employer on 7 March 2022. On 12 April 2022, she was diagnosed with lung cancer. Her husband informed DecoZorg of this by phone. DecoZorg then terminated the employment contract on 28 April 2022 (before its start date), dismissing her during the probationary period.
The employee sought fair compensation, arguing that DecoZorg had terminated the contract because of her disability or chronic illness. After she was diagnosed with lung cancer, her husband had contacted DecoZorg by phone on several occasions. In those calls, DecoZorg had repeatedly stated that her illness was not the reason for the probationary dismissal. According to DecoZorg, the termination was based on a reorganisation and an associated hiring freeze, and had nothing to do with her illness.
Unlawful and discriminatory dismissal
DecoZorg had made clear to the employee that, given her medical situation, the employment contract could not continue. The employee explicitly disputed that its financial position had come up in any of the phone calls, or otherwise. In the termination letter of 28 April 2022, DecoZorg stated that “unfortunately, the current situation does not allow us to make a different decision”. DecoZorg claimed it had already received signals of serious impending financial trouble as early as 25 February 2022. Despite this, it entered into an employment contract with the employee on 30 March 2022. It was up to DecoZorg to ensure its HR department was aware that a hiring freeze was necessary and that no new employment contracts could be entered into. The subdistrict court found that DecoZorg had failed to substantiate its claims of a dire financial position in any way. It ruled that the dismissal given to the employee was inextricably linked to her illness. DecoZorg had thereby acted in breach of the Equal Treatment (Disability and Chronic Illness) Act. This amounted to an unlawful and discriminatory dismissal.
Fair compensation
The legislative history shows that dismissing an employee in breach of the applicable rules is seriously attributable to the employer, amounting to serious culpability. The employee was therefore entitled to fair compensation. She calculated this at a total of EUR 57,346.05. DecoZorg did not dispute this calculation. However, the employee had based her calculation on the assumption that her fixed-term appointment would certainly be extended after one year. The subdistrict court did not accept this: DecoZorg had been entirely free not to continue the employment relationship after one year. The employee was awarded fair compensation of EUR 33,000 gross (one year’s salary).
Probationary dismissal due to illness not permitted
The so-called “during-illness” dismissal prohibitions do not apply during the probationary period. An employee can therefore be dismissed during probation (even before the contract’s start date) while ill. However, an employee may not be dismissed because of illness. This also applies to a probationary dismissal. Dismissing an employee due to illness – even during probation – is discriminatory and/or contrary to good employership, and, as this ruling shows, can lead to substantial fair compensation.
For the full ruling, click here (in Dutch).
A valid probationary period
Below are the conditions for a valid probationary clause.
- A probationary period may only be included in an employee’s first employment contract.
- The probationary period must be equal for both parties.
- The probationary period must be agreed in writing.
The length of the probationary period depends on the duration of the employment contract:
- Fixed-term contract of 6 months or less: no probationary period allowed;
- Fixed-term contract of more than 6 months but less than 2 years: maximum 1 month probation;
- Fixed-term contract of 2 years or longer: maximum 2 months probation;
- Permanent contract: maximum 2 months probation.
Questions about the above?
Please contact one of Sørensen Advocaten’s employment lawyers. Call: +31 (0)10-2492444
