This blog discusses the Supreme Court ruling of February 18, 2022. This judgment answers the question whether the prohibition on terminating during illness ( Article 7:670 (1) of the Dutch Civil Code) prevents an employment contract from being dissolved if an employee has reported sick after a dismissal permit has been requested from the UWV and the UWV has rejected the request.
The facts
Employer A builds stands for participants in events. Due to the corona crisis, this work has virtually ceased. One of the ways in which the employer has tried to save costs is by applying to the UWV for a dismissal permit for employee B.
The UWV rejected the application, after which the parties began negotiations. When this resulted in nothing, employee B called in sick on October 14, 2020. The dissolution request was received by the court on November 27, 2020.
The law offers employers in Article 7:671b paragraph 1 sub b of the Dutch Civil Code the possibility to submit a request for dissolution to the subdistrict court if the UWV rejects the dismissal permit. Employer A makes use of this option. It is not disputed that an a-ground applies (loss of jobs due to economic reasons), but employee B argues that he is unfit for work at the time of submitting the request for dissolution and that therefore the ban on termination during illness applies and the contract cannot be dissolved (Article 7:671b paragraph 2 of the Dutch Civil Code).
Employer A countered that it follows from Article 7:671b (2) of the Dutch Civil Code in conjunction with Article 7:670 (1) (b) of the Dutch Civil Code that the prohibition on termination during illness does not apply to this situation.
The subdistrict court did not follow employer B. According to the subdistrict court, it follows from Article 7:671b paragraph 7 of the Dutch Civil Code that the prohibition on termination during illness only does not apply if the illness commenced after submission of the request for dissolution, and that this also applies if a UWV procedure has taken place prior to the dissolution procedure.
The subdistrict court dismissed employer B's claim and the order was not appealed.
Cassation (in the interest of the law)
Cassation in the interest of the law is instituted. Attorney General de Bock discusses the matter at great length in her legal opinion and ultimately concludes that the subdistrict court assumed the correct interpretation of the law in the contested decision.
The Supreme Court's judgment of February 18, 2022, is to the contrary. The Supreme Court begins with the origins of the ban on termination during illness and recalls that it is only since July 1, 2015 that the ban on termination also applies when the subdistrict court dissolves the employment contract. Next, the Supreme Court referred to the text of Article 7:671b (2) of the Dutch Civil Code ("the subdistrict court may grant the request, (...), only if the conditions for termination of the employment contract have been met and there are no termination prohibitions (...)") and stated that if the employee fell ill after submitting the request for dismissal to the UWV, this does not prevent dissolution of the employment contract.
The Supreme Court continued by ruling that it must be assumed that the legislator's intention with Article 7:671b (7) of the Dutch Civil Code was to create a regulation similar to Article 7:670 (1)(b) of the Dutch Civil Code, by means of which possible improper use of the ban on termination during illness could be remedied. The Supreme Court then ruled that it could not be deduced from the legislative history that the legislator intended that Article 7:671b (7) of the Dutch Civil Code, in the case of applications on the a-ground, should preclude the application of Article 7:670 (1) (b) of the Dutch Civil Code in the dissolution procedure, as a result of which this intention would actually be impaired.
Next, the Supreme Court considered that this also affects employees who do not make improper use of the prohibition on termination during illness, because their employment contract can be dissolved.
The Supreme Court then refers to the legislator's intention when introducing the Dutch Flexibility and Security Act to overcome improper use of the ban on termination during illness. This, together with the lack of cites from the parliamentary history for the proposition that the legislature distanced itself from that intention, leads to the conclusion that this objection offers no justification for interpreting the system of dismissal law differently in a case like the present one than how the Supreme Court interprets it in this decision.
Conclusion
This judgment shows that the protection enjoyed by an employee is not unlimited. This does not mean that the procedure to have an employee's employment contract dissolved is straightforward. There are a large number of formalities that an employer must have fulfilled before a dissolution procedure has a chance of succeeding. If these formalities are not met, the court can penalize the employer in any dissolution proceedings by imposing a monetary penalty.
Want to know more?
Employment law, and especially dismissal law, is not simple. Are you planning to dissolve the employment contract with an employee and are you unsure about the formalities or do you have other labor law questions? Wolfs Advocaten is happy to help you with employment law disputes. Feel free to contact one of our lawyers.