For various reasons, an employer may get the idea to take leave of a sick employee by mutual agreement (through a mutual agreement). Sometimes because the employee requests it himself. Sometimes, as an employer, you think it would benefit the employee’s health if he could go and work somewhere else and not have to reintegrate at his current job. And sometimes, during a mediation process, a joint decision is made to part ways. But there are some pitfalls here. What should you pay attention to?
STARTING POINT = REINTEGRATION
If your employee falls ill, as an employer you are obliged by law to ensure that he can return to work for you as soon as possible. And if that turns out not to be possible, you must help him or her find work elsewhere (also known as second-track reintegration). As an employer, you may not simply withdraw your trust from a sick employee and indicate that you would rather say goodbye to him. This may qualify as bad employment practice and/or culpable behaviour, as a result of which, in the worst-case scenario, an employee could even successfully ask the court for fair compensation. So deal with this carefully: do not simply press for a break-up, but seek advice from an employment lawyer on what is advisable given the circumstances.
RISKS OF SICK LEAVE
If an employee is unfit for work while agreeing to terminate his employment contract, and he is still unable to work once his contract has ended, he will not be eligible for unemployment benefits. This is because one of the conditions for eligibility for WW is being able to work, and the employee does not meet that if he is sick. Normally, the sick employee then falls back on sickness benefit. But the sick employee will not get this if he agreed to terminate his employment contract during his illness. This is because during the first two years of illness, the employer is basically responsible for continuing to pay the employee’s wages, not the UWV. If you then agree together that the employer no longer has to do this, the UWV considers this to be an act of detriment. As a result, the employee will then not receive any unemployment benefit or sickness benefit.
How to avoid this? By:
1. Involving the company doctor in the process. Ask the company doctor if and when he expects the employee to be better again. Have him confirm this in the written feedback of the consultation.
2. Asking the employee to report better before signing the settlement agreement. In addition, if the employee is excused from work, it is advisable to include in the settlement agreement that the employee must report to the employer immediately if he does fall ill again.
It is also not favourable for the employer if an employee leaves the employment sick; as you may then be faced with an increase in the employer’s premium for the Sickness Benefits Act and/or WGA (unless as an employer you are self-insured for these benefits). All the more reason to take reintegration obligations seriously, contribute to the employee’s recovery as much as possible, and only propose a settlement agreement after careful consideration.
Workx’s lawyers have extensive experience in guiding sickness cases and advising on the termination of an employment contract by mutual agreement. We can also prepare all necessary documentation, including a settlement agreement. So feel free to contact us for advice.