Employer Has to Prove that Discontinuation of the Employment Contract was not Due to Illness

Since the Sub-district Court presumed strongly that an employer had discontinued the fixed-term employment contract after expiration of the agreed term, because the employee had been diagnosed with metastatic breast cancer, the employer was ordered to prove that the employee's illness had not played a role in its decision to discontinue the employment contract.
The employee worked at a toy store as the assistant store manager. In July 2022, she reported sick. She suffered from breast cancer with metastases and was treated against it.
At the time of reporting sick, the employee worked under a third fixed-term employment contract, which would terminate on August 31, 2023. In the employment contract it was stated that the employment contract would not be extended, unless the employer would inform the employee in writing, that it would be. During a meeting with HR manager on August 31, 2023, the latter informed the employee that the employment contract would not be extended. The UWV had granted the employee a Sickness Benefit, as of September 1, 2023.
Then, the employee asked the Sub-district Court, among other things, compensation for the failure to timely notify that the employment contract would not be continued (a one month's salary) and a fair compensation of € 5,000, as well as damages of € 4,000 for violation of good employment practices. As for the latter, she stated, among other things, that the employer’s decision not to extend the employment contract had caused a prohibited discrimination on grounds of a chronic illness.
As for the notice fee, the Sub-district Court held the opinion that the notice of discontinuation of the employment contract after expiration of the agreed term had already been given in the employment contract. The employee had stated that the employer had agreed to extend the employment contract, but she had not managed to provide any evidence against the employer's dispute.
As for the prohibited discrimination on grounds of a chronic illness, the Sub-district Court determined that a failure to extend an employment contract on grounds of a chronic illness or a labour incapacity would be in violation of the applicable prohibition of discrimination in the law, and that it is up to the other party to prove that the law has not been contravened, if the person who believes that a prohibited distinction was made, provides facts from which it may be presumed that such a distinction has taken place.
The Sub-district Court further noted that the legal prohibition is based on a European Directive and that, based on case law of the Court of Justice of the European Union, the concept of "chronic illness or labour incapacity" has to be interpreted as "a limitation that, in particular, is the result of long-term physical, mental or psychological disorders, which, in interaction with various barriers, may hinder the person concerned in fully, effectively and on an equal basis with other employees participating in working life'. Therefore, according to the Sub-district Court, it is important to know how much work the employee can still perform.
The Sub-district Court established that both the employee and the occupational physician assumed that the employee would still be able to work in the future. The employer had argued that there was no chronic illness because the assumption was that the employee would fully recover in the long term. The Sub-district Court, however, was of the opinion that this was by no means certain, and pointed out that the Netherlands Institute for Human Rights sees breast cancer as a chronic disease. That is why the Sub-district Court was convinced that there was a chronic disease.
From the fact that it was undisputed that the employee performed well, that -even upon request- the employer was unwilling to give a reason for discontinuation of the employment contract and that the employer had indicated to be prepared to hire the employee again after recovery, the Sub-district Court concluded that there was a strong presumption that the chronic illness had played a role in the discontinuation of the employment relationship. According to the Sub-district Court, this might imply that the employer had been seriously culpable. Since the employer disputed that a prohibited distinction had taken place, it was up to the employer to prove that the employee's chronic illness had not played a role.
Therefore, the Sub-district Court ordered the employer to provide evidence for its statement.

When the legal regulation, in which an employer was obliged to inform the employee one month before the end of a fixed-term employment contract whether or not the employment contract would be continued and if so, under what conditions was introduced, the Minister of Social Affairs and Employment explained in the House of Representatives, that this notification can also be made on entering into the employment contract.
The Minister's reasoning was that, in that case, employees know very early-on that their employment contract will not be extended and that, therefore, they should start looking for another job.
Practice, however, frequently shows that in advance employers announce that the employment contract will not be extended and then, not until at the end of the employment contract, decide whether they will or will not offer the employee a new employment contract.
If that is the case, employees still don’t know whether they have to find themselves another job. The obligation to give notice has become a formality then.
In the above case, the employer had even included the option that it could always be decided later to extend the employment contract in the employment contract itself. There are strong arguments to say that this method of notification is not in accordance with the law, but the Sub-district Court did not hold the employer accountable for it.
The employer, on the other hand, runs a high risk of having to pay compensation for not having extended the employment contract due to the employee's illness. In order to avoid this obligation, the employer will now have to provide convincing arguments for the existence of another reason for having discontinued the employment contract.