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Russell Advocaten B.V.
Amsterdam, Netherlands

In a number of cases it is prohibited to dismiss an employee. When is that the case? What are the exceptions to this rule?

The dismissal of an employee always requires a legal ground. But sometimes the employee cannot be dismissed even if there is a legal ground. The most important prohibitions on termination are during illness, pregnancy and membership of the works council. In addition, there are certain staff members that, in principle, may not be dismissed. And finally there are a number of grounds on which employees may not be terminated.

No dismissal during illness

It is not permitted to dismiss an employee during the first two years of illness or long-term incapacity for work. This prohibition does not apply if the employee, despite reminders, refuses to fulfil his reintegration obligations. The prohibition does not apply either when the reason for dismissal is the loss of the employee’s position.

An employee cannot block a dismissal by reporting sick. Only if the notification of illness was made before the dismissal permit was applied for at the UWV or the request for dissolution was submitted to the subdistrict court, the prohibition on termination applies.

After two years of incapacity for work, the employee can be dismissed. These two years do not need to be an uninterrupted period. However, the interruption may not exceed four weeks. Pregnancy leave and  maternity leave do not count for the calculation of the duration of the incapacity for work. In the event of dismissal, the employee is entitled to transitional compensation.  From 1 April 2020, a compensation scheme will be put in place for this purpose.

No dismissal during pregnancy or maternity leave

An employee may not be dismissed during pregnancy or maternity leave. If the employee is on pregnancy leave or maternity leave, she cannot even be dismissed when the company is terminated or the job is terminated.

No dismissal during membership of the works council

Members of the works council or any other form of worker representation may not be dismissed. This also applies to employees who are candidates for the works council or worker representation or that had been members of these less than two years previously. This prohibition also includes the official secretary of the works council and members of preparatory committees for the works council.

Which employees may not be dismissed?

A prohibition on termination applies to the following employees:

  1. Prevention officer
  2. Company doctor and
  3. Data protection officer.

The legislator considers it important that they are able to carry out their work independently and without risk of dismissal.

When does the prohibition on dismissal not apply?

The aforementioned prohibitions do not apply if:

  1. The employee assents to the termination. The statutory period of reflection of 14 days applies to the employee.
  2. The employee is still in the probationary period.
  3. There is a reason for dismissal with immediate effect.
  4. The company is terminated or the job is terminated for business reasons. In that case, the prohibition on termination during the pregnancy leave and maternity leave remains in effect.
  5. The employee retires.

What are the grounds on which an employee cannot be dismissed?

Finally, there are a number of grounds for dismissal that are not permitted:

  1. Membership of a trade union
  2. Membership of a political body (Senate, Municipal Council, Alderman, States-Provincial and Provincial-Executive) or Water Board
  3. The desire to take parental leave
  4. Transfer of undertaking, and
  5. Refusal to work on Sunday.

The employer cannot invoke these reasons either to justify a permitted ground for dismissal. Think, for instance, of an employee who refuses to work when he is having a council meeting.

In addition, it is also prohibited to dismiss an employee on grounds that are in violation of a ban on discrimination:

  1. Distinction between men and women
  2. Age discrimination
  3. Chronic illness or disability
  4. Fixed-term or indefinite contract
  5. Working hours
  6. and the general prohibition of discrimination on the basis of religion, belief, political opinion, race, sex, nationality, heterosexual or homosexual orientation or marital status.

The prohibitions for dismissal also apply to termination during the probationary period.

More information

Do you need advice about the dismissal of an employee or do you want to enter into an employment contract? We are happy to be at your service. Please contact Jan Dop (jan.dop@russell.nl or +31 20 301 55 55).