Dismissing a sick employee: when is it allowed?

Dismissing a sick employee means terminating the employment contract while the employee is unfit for work or still in a reintegration process. Under Dutch law, an “illness-related dismissal ban” generally prevents termination during the first 104 weeks of sickness, but there are narrow exceptions. The search intent behind “zieke werknemer ontslaan wanneer mag dat” is therefore about the legal ground, the timing within the 104-week period and the strength of the reintegration file. This article explains when termination can be lawful, how “spoor 2” affects the outcome, and what commonly triggers UWV issues.

When is dismissal allowed under the Dutch dismissal ban during sickness?

“Zieke werknemer ontslaan wanneer mag dat?” During the first 104 weeks of sickness, Dutch employment law generally prohibits the employer from giving notice because the employee is sick. The purpose is to prevent job loss that is causally linked to incapacity. However, the ban does not mean termination is impossible in every scenario; it means you cannot terminate on the ground of sickness, and you must meet strict conditions for any exception.

So when can dismissal be lawful within those 104 weeks? Only if the termination ground is genuinely unrelated to the sickness and you can evidence that the illness did not influence the decision. Examples include summary dismissal for an urgent cause or termination during probation. Mutual termination is also possible, but it requires extra care due to medical uncertainty and benefit implications.

In a spoor 2 context, it is crucial to understand that the dismissal ban does not end just because you start a trajectory outside the employer’s organisation. A re-integratie tweede spoor traject often runs while the ban still applies, because it is typically initiated when returning to the original role (spoor 1) is no longer realistic.

• Main rule: during 104 weeks of sickness, you cannot terminate because of sickness.
• Exceptions exist but must be demonstrably unrelated to sickness.
• Risk area: mutual termination can be valid but must be handled carefully.
• Risk area: UWV later reviews whether reintegration efforts were sufficient.

Which exceptions apply: when can termination during sickness still happen?

When is dismissal allowed during sickness? The key exceptions are narrowly defined. In practice, employers often run into trouble by applying an exception too broadly or by failing to document the rationale. With long-term absence, UWV and courts may look closely at causality: was the reason truly separate from the sickness, or did absence play a role?

A clear exception is summary dismissal (ontslag op staande voet). It can apply even if the employee is sick, but only with an urgent cause (for example theft or serious fraud) and immediate action. The employer must show the dismissal was driven by the urgent cause, not by the absence itself. Because the legal threshold is high, consistent handling and strong documentation are essential.

Another exception is termination during probation. This can be done while the employee is sick, provided it is not discriminatory (i.e., not because the employee is sick). A fixed-term contract can also end during sickness without “notice”; it expires by operation of law. Reintegration duties still apply up to the contract end date.

• Summary dismissal: only with an urgent cause and immediate action.
• Probation: possible if sickness is not the reason.
• End of fixed-term contract: contract ends; reintegration continues until end date.
• Mutual termination: possible, but extra care is needed in sickness cases.

Why “spoor 2” often determines whether termination after sickness is feasible

When is dismissal allowed after prolonged sickness? You quickly get to the question whether the employer has done everything reasonably expected. “Spoor 2” is the pathway where employer and employee explore reintegration with another employer if returning to the original job or within the organisation (spoor 1) is not feasible. A well-timed and well-executed spoor 2 reduces the risk of UWV concluding that efforts were insufficient.

Tension arises when spoor 2 starts too late or is implemented superficially. UWV can then impose a wage sanction (loonsanctie): the employer must continue wage payments and reintegration longer. This is why it helps to organise the legal framework and practical requirements around employer obligations in reintegration, including evaluations, adjustments and reporting.

Substantively, spoor 2 is not the same as outplacement. Spoor 2 is tied to sickness and the Wet verbetering poortwachter (the statutory reintegration and absence-management framework), while outplacement usually supports job-to-job transitions after termination. In spoor 2, career coaching can still be part of the approach, but always within medical capacity and “suitable work”.

• File strength: a plan, evaluations and documented actions.
• Capacity-led: search for suitable work within medical limitations.
• Timing: start spoor 2 once spoor 1 is no longer realistic.
• UWV risk: late/weak spoor 2 can trigger a wage sanction.

Step-by-step: from long-term sickness to termination after 104 weeks

When is dismissal allowed after two years of sickness? After 104 weeks, the dismissal ban often no longer applies. Termination via UWV may then be possible on the ground of long-term incapacity. UWV assesses both the medical situation (through its insurance physician) and the reintegration report: did both parties do what was required, and is return to work still expected?

This route requires preparation. The reintegration report typically contains the problem analysis, plan of action, updates, first-year evaluation and final evaluation. If UWV finds insufficient efforts, it may impose a wage sanction rather than granting permission to dismiss. That turns “dismissal after two years” into “continued wage payment and continued reintegration”.

Financially, wage continuation during sickness is a core element. Many collective agreements and contracts specify percentages and conditions. It helps to understand the rules around wage continuation during sickness, because payment errors can complicate the process and damage trust.

• Confirm the 104-week period has actually elapsed (including any extensions).
• Ensure the reintegration report is complete and consistent, including spoor 2 efforts.
• Apply to UWV for termination based on long-term incapacity.
• Prepare final settlement items: leave balance, wage components, transition payment.
• Align communication about WIA assessment and income expectations.

Transition payment, WIA and termination: practical consequences

When is dismissal allowed without major financial surprises? Even after long-term incapacity, a transition payment (transitievergoeding) can be due. Employees accrue it from day one. In practice, you should determine early how it will be calculated and which route you will use (UWV procedure versus mutual termination).

In spoor 2 cases, parties often look ahead to a possible end of employment while the trajectory is still running. A settlement agreement for termination can be an option, but sickness requires extra care. You want to avoid disputes about consent under pressure or whether recovery and return to work were still possible. The wording should also fit benefit rules depending on the situation.

After termination, the employee may face a WIA assessment if limitations remain. The outcome depends on the disability percentage and residual earning capacity. Many employees benefit from understanding how WIA benefits are calculated, because it shapes expectations about income and work prospects.

• Transition payment: often due, including after 104 weeks of sickness.
• Settlement agreement during sickness: legally possible but riskier with medical uncertainty.
• WIA: UWV assesses limitations and earning capacity after the waiting period.
• Practical: coordinated communication prevents unnecessary escalation.

Real-life scenarios: what is allowed and what is not?

When is dismissal allowed in a realistic case? Scenario 1: an employee has been sick for 8 months and spoor 2 has not started, while the occupational physician indicates return to the original role is unlikely. Dismissal is not the right focus; the priority is reintegration, updating the plan of action and timely initiation of spoor 2. If you try to end employment because “it no longer works”, the sickness will likely be seen as the real driver.

Scenario 2: an employee is sick but is proven to have committed expense fraud. Summary dismissal may be legally possible if you investigate properly, hear the employee and act immediately. Sickness does not make it impossible, but it increases the need for procedural care and proportionality.

Scenario 3: after 104 weeks, the employee has lasting limitations and there is no suitable role available. The file shows serious spoor 1 attempts, timely spoor 2, and exploration of vacancies or work-experience options. In that case, UWV termination based on long-term incapacity can be feasible. This also connects to broader considerations around termination after reintegration, because closing employment often coincides with renewed orientation toward work.

• Allowed: termination after 104 weeks with a complete file and proven efforts.
• Allowed: summary dismissal for an urgent cause, even during sickness.
• Not allowed: ending employment within 104 weeks because the employee is sick.
• Not allowed: skipping spoor 2 and still expecting UWV approval.