Is Termination of Employment Contract with Incapacitated Employee during Probationary Period Conflicting with the Prohibition of Discrimination?

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Sub-district Court of Maastricht, 27 September 2018, ECLI:NL:RBLIM:2018:9190


An employee who was incapacitated for work as a result of a workplace accident was dismissed by the employer during the probationary period. The Sub-district Court ruled that this dismissal was not in conflict with the legal prohibition of unequal treatment on the basis of handicap or chronic disease.

On April 5, 2018 an employee joined a metal company in the position of a maintenance engineer. The employment contract was entered into for a period of one year, with a two- month’s probationary period. The applicable Collective Labour Agreement allowed this duration of the probationary period, so that there was a legal deviation from the basic principle in the law that the probationary period for a one-year employment contract should not exceed one month.
On April 13, 2018, the employee had an accident when working on a lock in Hengelo. His left middle finger became trapped then. After an examination at the GP Surgery, where it was diagnosed that he had a bruised finger, the employee had resumed work. But when the employee’s finger symptoms persisted, it was found that the finger was broken. On May 16, 2018 the employee reports sick as yet. An occupational physician’s report of 4 June 2018 shows that the injury may be lasting. On the same 4 June 2018 (the last day of the probationary period) the employer terminates the employment contract with reference to the probationary period. The employee states that this termination of the employment contract is in conflict with the legal prohibition on discrimination on the basis of handicap or chronic disease. And at the Sub-district Court he claims annulment of the termination and continued wage payment.
First of all, the Sub-district Court judges that the law does not determine in what case there is a handicap or a chronic disease. According to the Sub-district Court, there is a disease because the employee is incapacitated as a result and that the disease is chronic because even after five months checks and examinations are still carried out and because there may be lasting sequelae. The Sub-district Court concludes that he is unable to assess whether the termination is conflicting with the law because it is not clear whether the employee will remain incapacitated for his work as a maintenance technician as a result of the finger injury, whereas a dismissal during the probationary period due to a chronic disease is not conflicting with the law if the employee will remain permanently incapacitated for work due to the chronic disease. Since it very much looks as if the employer did not terminate the employment contract until after he had learned from the occupational physician that the disease was chronic, according to the Sub-district Court, the presumption that this is case of prohibited discrimination on the basis of a chronic disease is justified. This implies that it is now up to the employer to prove that this is not the case.
According to the Sub-district Court, however, the employer has already proven this by pointing out that he had declared to be willing to reinstate the employee as soon as he would have recovered, if he would have any vacancies at the time. Since, according to the Sub-district Court, there is no prohibited discrimination, the employee’s claims are rejected.


The Sub-district Court’s decision contains a number of decisions that, in our opinion, are not so obvious. We can understand the reasons the Sub-district Court gives to assume a chronic disease, considering the absence of a definition of this term in the law.
The Sub-district Court’s decision that dismissal during the probationary period is not in conflict with the law if the incapacity for work is permanent, is based on a judgement of another Sub-district Court (Sub-district Court Amersfoort, 27 November 2008, JAR 2009/4). In that judgement the decision is substantiated with an appeal to the legislative history.
But, since it is by no means certain that the incapacity for work will be permanent it would have been obvious, in our opinion, if the Sub-district Court would have ruled that this exception cannot be invoked.
And it is absolutely unclear for us is why the presumption of a prohibited distinction on the basis of a chronic disease is disproved, solely because the employer has offered to take the employee back in service once he is fit for work again.
In our opinion, this rather reflects that the termination by the employer was prompted by the chronic disease. After all: in principle the employee may return to active service again once the disease is over (and, therefore, is not chronic?). To us this seems that, on the contrary, this case demonstrates prohibited discrimination based on a chronic disease.
This time, the Sub-district Court’s decision happens to be beneficial for the employer in question, but we advise employers to be aware of the prohibition on discrimination on the basis of handicap or chronic disease when terminating or not extending an employment contract with a sick employee.

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