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Dismissal in the event of long-term illness

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Principle

Dismissing a sick employee is always possible. However, some rules must be taken into account. It may not be a case of manifestly unreasonable dismissal or dismissal on the basis of discrimination against his/her state of health.

Period of protection

During the period of illness, an employee has no protection against dismissal. However, it is of course prohibited to dismiss the employee because of his/her illness.

The employer will first have to prove that the dismissal of the employee was not based on the employee's state of health, but on legitimate criteria.

How can the contract be terminated?

The employer can terminate the contract of employment in several ways.

  • By serving the notice period: However, this is not that simple in practice, since the notice period can only start when the employee has recovered. Meanwhile, the notice period remains suspended.
  • By paying a severance payment: To end the contract immediately, one can also opt to pay a severance payment. This indemnity should correspond to the salary that would be due for the duration of the notice period.

For which reasons can the contract be terminated?

The contract can be terminated for reasons of conduct or suitability for the job (for example poor performance), but also for economic or organizational reasons.

Suppose the employer can prove that the illness has a direct negative influence on the organization of the work, then the dismissal of the sick employee is acceptable. It may, for example, be a decrease in productivity or an increase in the burden on colleagues. In this case, the employer will have to prove that there was no other option than to dismiss the employee.

Is an employer obliged to offer adapted work?

Within the framework of a re-integration process, the occupational physician can decide to possibly re-integrate the employee. If that is the case, the employer is obliged to set up a reintegration programme. This obligation only ends when the employer can effectively demonstrate that the reintegration is impossible for valid reasons.

Decision

There is no legal protection against dismissal during the employee's illness, but there are a number of rules that the employer must adhere to. Dismissal is only possible with a valid or sufficient reason and not because of illness. It is therefore important to be able to motivate the dismissal.

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Heidi Vergauwe

Dedicated and meticulous Payroll & HR Advisor, always willing to go for the extra (s)mile!