Settlement agreement after long-term (104 weeks) illness.

When an employee is ill for a long period (104 weeks) and no wage sanction has been imposed by the UWV, the employer may terminate the employment contract. This termination can then take place in three ways.

  • Employer will go through UWV procedure to get dismissal permit
  • Employer offers a settlement agreement to
  • Employee makes reasonable request to terminate "dormant employment".

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Reasonable request to terminate dormant employment.

In late 2019, the Supreme Court ruled in the Xella judgment that an employer must cooperate with an employee's reasonable request to terminate dormant employment. In this judgment, the Supreme Court also specified what constitutes a reasonable request with regard to the amount of the transitional compensation. If the employee submits a request to terminate the dormant employment contract, the employer only has to give a severance payment as it would be calculated at the time of 2 years of illness.

Example: If the employee is sick for 104 weeks from 1 January 2023 and the employee requests a termination in August 2023, the transition allowance is calculated with the years of service up to 1 January 2023, the remaining months do not count.

Employer wants to terminate employment.

What we often see is that an employer interprets the Supreme Court ruling rather broadly (in its favour) and that an employer, when offering a settlement agreement calculates the transitional compensation with the years of service up to the moment of 104 weeks of illness. However, as described above, this calculation only applies when the employee makes the request to terminate and not when the employer takes the initiative to terminate the employment contract.

This means that often through a settlement agreement unjustifiably understated transitional compensation. The other route the employer can take is through the UWV and then the transition compensation should be calculated over the entire employment (including the notice period, which must be observed in UWV proceedings).

A good option is to use your VSO to be monitored, so you can be sure you get what you are entitled to.

Higher sickness compensation often still possible.

For example, LegalWorx recently had a case involving the above. This employer used the calculation as set out in the Xella judgment.

LegalWorx pointed out to the employer that they had informed the employee by e-mail that they wanted to terminate the employment contract and that no request for termination had come from the employee. As a result, the employee's compensation ended up being €1,500 gross higher; in addition, the employer paid the legal costs which meant that the employee did not have to incur any costs.

Even someone you trust can make mistakes.

If you have questions about your situation or about a received settlement agreement? Please contact us via WhatsApp, call +(31) 085-08 054 82 or send a email; our employment lawyer will be happy to assist you.