Recently, the Supreme Court (HR 18 February 2022, ECLI:NL:HR:2022:276 ) gave a definite answer about the validity of the prohibition to give notice during illness, in a request for rescission of an employment agreement due to commercial circumstances, after the UWV had refused the termination.
Background
In order to protect the sick employee against dismissal, in principle an employer cannot give notice of termination of the employment agreement during the first two years of illness. However, this prohibition to give notice during illness may also facilitate abuse. An employee may call in ‘sick’ as soon as the employer has announced its intention to dismiss him, in order to prevent dismissal: this is called the ‘spurious sick report’.
The law has a number of exceptions to the prohibition to give notice in order to prevent the spurious sick report. For example, the employer does have the power to give notice of termination of the employment agreement if the employee has reported sick after the employer submitted a request for termination to the UWV, or a request for rescission to the Subdistrict Court.
This exception to the prohibition to give notice may create a lack of clarity when the employment agreement is terminated for commercial reasons (also known as the “a ground”). Initially, termination of the employment agreement based on the a ground requires the permission of the UWV. If the UWV refuses permission, a request for rescission may be submitted to the Subdistrict Court. The Subdistrict Court can only rescind the employment agreement if no prohibitions to give notice apply. In such a situation, the question at hand is whether the Subdistrict Court can rescind the employment agreement based on the a ground if the employee is ill and this illness has started after the UWV’s permission has been requested to give notice of termination of the employment agreement, but before the request for rescission has been received by the Subdistrict Court.
Recently, the Supreme Court shed more light on this.
Facts
The job of an employee who worked as a booth builder became redundant as a result of the corona crisis. In June 2020, the employer submitted a request for permission to terminate the employment agreement on account of commercial circumstances to the UWV. The UWV denied this request on 1 October 2020. In mid-October 2020, the employee called in sick and in November 2020 the employer submitted a request to rescind the employment agreement to the Subdistrict Court. The employee argued that the request for rescission should be denied, because he was ill at the time when the request for rescission was submitted, and therefore a prohibition to give notice applies. The Subdistrict Court went along with this and denied the employer’s request for rescission.
The parties did not appeal. However, because this case concerns a legal question that must be answered in the interest of the unity of law or development of law, cassation proceedings were brought before the Supreme Court in the interest of the law.
The Supreme Court
Following an interpretation of the relevant statutory provisions, the Supreme Court considered that no prohibition to give notice applies if a request for rescission is made on the “a ground” when the employee has become ill in the period between the application for dismissal to the UWV and the request for rescission to the Subdistrict Court.
This Supreme Court justified this as follows in its decision. This interpretation discourages improper use of the prohibition to give notice during illness, which corresponds to the intention of the legislator, according to the Supreme Court. Besides, the procedure before the UWV and that before the Subdistrict Court are closely connected. Rescission by the Subdistrict Court is only possible if the employer has first asked the UWV’s permission for a termination and this permission was refused. Then, the Subdistrict Court will test against the same criteria as the UWV uses.
Conclusion
With this decision, the Supreme Court ruled that when the employee has become ill after the application for dismissal was filed to the UWV but before the request for rescission to the Subdistrict Court, this does not stand in the way of a rescission of the employment agreement by the Subdistrict Court on the a ground.
Do you have questions about this topic? Please contact Noor Sluis.
