A sick employee is protected against dismissal, but that protection is not absolute. If an employee does not cooperate sufficiently with their rehabilitation, that could, in certain circumstances, lead to the employment contract being set aside. A recent ruling by the Rotterdam District Court shows where the limits may lie.
What was the situation here?
An employee went on sick leave. From that point on, the employer and employee were supposed to work together on the employee’s rehabilitation. The employer was to provide guidance and take appropriate steps; the employee, in turn, was to cooperate on reaching reasonable arrangements about recovery and a return to work.
According to the employer, the employee did not do enough in that regard. Furthermore, there was a longer history between them whereby the employee had already been talked to and officially warned, on several occasions, about his sick leave and absences. After reporting sick the last time, he consistently avoided contact with his employer and the company doctor. As a result, the process came to a standstill.
The employer therefore asked the Subdistrict Court to set aside the employment contract: not because of the sickness itself, but because of the employee’s behavior during the rehabilitation process.
Why did the Subdistrict Court set aside the contract?
The Subdistrict Court ruled in favor of the employer. An employee has to cooperate with the rehabilitation process even when he is on sick leave.
According to the Subdistrict Court, this employee had not done enough in this regard and was therefore at fault. The Subdistrict Court therefore set aside the employment contract.
Moreover, the employee had not responded substantively to the application to set aside the employment contract and did not appear at the hearing.
The essence of the ruling: the sickness itself was not the reason for the employment contract being set aside. However, the consistent refusal to cooperate with the rehabilitation process was. The Subdistrict Court also ruled that the ban on termination during sickness did not, in these circumstances, stand in the way of the employment contract being set aside.
For employers, there is a practical lesson to be had: the court will look at the entire rehabilitation process. What steps were taken? What arrangements were made? Was the employee given clear warnings? And does the file show that, despite those warnings, he did not cooperate?
Simply stating that an employee is not cooperating is therefore not enough. The file should also reflect that.
Takeaways
Rehabilitation is not a one-way street. Employers have to provide guidance, offer direction, and carefully follow the advice of the company doctor. Employees have to be available, show up for appointments, and follow reasonable instructions.
For employers, the file is key. Put any arrangements in writing, confirm missed appointments, and provide clear warnings. In this case, this was followed first by a wage suspension and then by a wage freeze. The employer had also attempted to obtain an expert opinion from the UWV (the Employee Insurance Agency). That step-by-step approach had also been a factor in the ruling.
The court will only consider setting aside the employment contract if the case file shows that the employee has not cooperated despite clear warnings.
Sickness offers protection, but it is not a free pass. This ruling shows that such protection can reach its limits when, despite repeated warnings and measures, an employee consistently fails to cooperate with their rehabilitation.
Judgment: ECLI:NL:RBROT:2026:5119
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