‘s-Hertogenbosch Court of Appeal, 20 March 2025, ECLI:NL:GHSHE:2025:747
A chronically ill employee is not obliged to disclose information about his medical situation during a job interview where there is no connection between the chronic illness and the requirements of the role. On 20 March 2025, ‘s-Hertogenbosch Court of Appeal ruled that a request to dissolve the employment contract was rightly rejected because of the ban on dismissal during illness.
Facts
The chronically ill employee was appointed as a civil servant with the employer on 19 August 2019, after which his civil-servant status was converted by operation of law into ordinary employee status as of 1 January 2020. The employee has suffered from chronic psychological symptoms since 2011. During his employment, the employee was repeatedly, and for extended periods, unfit for work as a result of his chronic psychological conditions. The employee resumed his duties but became unfit for work again as of 15 July.
Three and a half months later, the employee applied for the role of security officer at the district court. During the job interviews, held in November 2023, the employee did not disclose his medical situation or his incapacity for work with his employer. The court received the personnel file from the employee’s then-employer, which showed he had been unfit for work from 3 July to 27 November 2023. In response, the employee stated he had been ill but was now doing well.
As of 1 January 2024, the employee started working for his new employer. Two weeks later, he reported sick. He explained he had not discussed his medical situation during the job interview because he had previously been rejected for that reason. In April 2024, the employer submitted a request to the subdistrict court to dissolve the employment contract, which was rejected. The employer appealed this decision, but ‘s-Hertogenbosch Court of Appeal upheld the subdistrict court’s ruling and confirmed the contested decision.
Ruling
‘s-Hertogenbosch Court of Appeal upheld the subdistrict court’s decision and rejected the requests on appeal. The Court of Appeal ruled there was no ground to terminate the employment contract. An important reason for this is the ban on dismissal during illness, which stands in the way of dissolution. The Court of Appeal ruled the exception to this ban — namely that the dissolution request is unrelated to the illness — did not apply. After all, the failure to disclose the medical situation during the application process was directly related to the very same medical condition that caused the incapacity for work.
The Court of Appeal further considered that the employee was not obliged to provide information about his medical situation or incapacity for work during the application process. This ruling was based on the consideration that his chronic condition did not, by definition, mean he could not meet the requirements of the role. The Court of Appeal emphasised that such an obligation would conflict with the statutory protection of chronically ill employees.
The other claims, such as a finding of seriously culpable conduct, denial of wages during illness and after the end of the employment contract, and an order to repay legal costs, were also rejected.
Conclusion
The ruling underlines the protection of chronically ill employees in application procedures and strengthens the position of the chronically ill employee. It is therefore important for employers to recognise that an applicant’s duty to disclose health information is limited to what is relevant to the role, and that illness, in principle, provides protection against dismissal.
Do you have questions about an employee who is unfit for work and want to take the right steps? Please contact one of our employment lawyers.
Click here for the full ruling (in Dutch).
