Fair Compensation upon Dissolution for Long-term Incapacity?

The employer who had the UWV permission to terminate an employee’s employment contract because the employee had been ill for over two years, did not have to pay her a fair compensation since the employee had failed to demonstrate that the behaviours the employee accused the employer of had caused the employee’s, after two years still lasting, labour incapacity.
A female employee of a sales company for tools dropped out for work in March 2021, due to stress-related complaints. When, two years later, she was still labour incapacitated, the employer terminated the employment contract for that reason. The employer had received permission to do so from the UWV. The employee then submitted a claim to the Sub-district Court asking that the employer should pay an additional severance payment (the so-called “fair compensation”) in addition to the transitional allowance. To this end, she stated that the employer had behaved in a seriously culpable way by:
• not following the occupational physician’s advice to have the employee gradually build up the number of working hours but, instead, to send her home;
• making a proposal to the employee to terminate the employment contract and by giving incorrect information about future redundancy of her job and her unemployment rights;
• putting pressure on the employee to agree to the proposal, also after she had rejected it.
The Sub-district Court ruled that entitlement to fair compensation does exist if the employer has acted in a seriously culpable manner and if, for that reason, the labour incapacity could continue for two years, as a result of which the employment contract could be terminated.
Therefore, there has to be a cause and effect relationship between the conduct that the employee accused the employer of and the termination of the employment contract due to long-term incapacity.
The Sub-district Court ruled that this cause and effect relationship had not been demonstrated.
The employee had based her claim on events in the period from August 2021 to January 2022 and pointed to deterioration of her complaints during that period, as described in the occupational physician’s advices that were issued after the employer’s proposal on September 1, 2021 to terminate the employment contract as of October 31, 2021 and after the employer had exempted her from work in that context. But the Sub-district Court was of the opinion that, in general, the occupational Physician’s advice showed a different reality than the one portrayed by the employee. The employee incorrectly only pointed to a period of a few months during the first year of illness.
Prior to that period, the occupational physician mentioned non-work-related problems that hindered the employee's recovery. Even during the period mentioned by the employee, the occupational physician reiterated that the complaints were not related to work. And also after the employer had proposed to terminate the employment contract, the occupational physician had stated that most of the complaints were not work related. In October 2021, the occupational physician wrote that the complaints and limitations had deteriorated and that recovery was hindered by work-related circumstances. The occupational physician therefore recommended mediation, an advice that was followed by the employer.
One month later, the occupational physician wrote in his advice that a new diagnosis had been made, that the complaints were serious and that they had deteriorated. According to the occupational physician, most of the complaints were not work-related. Somewhat later, this advice was reiterated and again later, the occupational physician spoke of both work- and non-work-related factors that caused that the syndrome was preserved.
The Sub-district Court stated that it could not be deduced from the occupational physician’s advice whether the deterioration of the complaints was exclusively or predominantly the result of the employer's proposal to terminate the employment contract in September 2021.
There was no evidence that deterioration of the complaints would not have happened nor that -as the occupational physician’s had forecasted earlier - the employee would have recovered by mid-October 2021 if the employer had not made his proposal. According to the occupational physician, the complaints deterioration was mainly not work-related. Informal care and the treatment and support of the employee were other some causes for deterioration of the complaints.
Therefore, the Sub-district Court rejected the employee's claim for payment of a fair compensation.

Of course, it is very difficult to demonstrate a cause and effect relationship between the employer's behaviour and the development of the complaints and resulting limitations of an incapacitated employee. Had the occupational physician had stated that the deterioration of the complaints was the result of work-related circumstances, however, this case might well have turned out differently for the employer. The Sub-district Court did not take a position on the culpability of the employer's behaviour, but before this behaviour could be qualified as seriously culpable, more must have been going on. It would not have seemed inconceivable, however, that steering towards termination of an employment contract with a sick employee might have been qualified as being seriously culpable. After all, there is a prohibition on termination during the first two years of illness, intended to exempt the incapacitated employee from worries about continuation of his/her employment contract.
Besides, the employee would have run into financial problems if she had agreed to termination of the employment contract. In that case she would not have been entitled to an unemployment benefit since, due to her illness, she was not available for the labour market, nor would she have been entitled to a sickness benefit because cooperating with a dismissal during illness constitutes a prejudicial act in relation to the UWV.
Making a sick employee a proposal to terminate the employment contract is quite often a blind alley. The employer has to inform the employee of the above-mentioned consequences. Once the employer has done so, the employee will not accept termination of the employment contract. And if the employer does not do so, it will give the employee the opportunity to subsequently annul the agreement to terminate the employment contract on account of an error on entering into the agreement.