Last modified:Thursday 31 October 2019
There is a lack of clarity regarding the dismissal of employees on sick leave. Your worker’s employment contract will stipulate which rules should be applied. Here’s what you should know.
Scenario 1: open-ended contract
An employee on long-term sick leave with an open-ended contract may not be dismissed solely on the grounds of his or her illness. A valid reason will always be necessary, such as poor performance before the employee became ill or insufficient work.
There are two exceptions to this rule:
the worker’s absence is detrimental to efficient organisation: naturally, you must be able to demonstrate that dismissal is the only option to ensure proper functioning.
medical force majeure: if an employee is permanently incapacitated for work, you can dismiss him or her without notice of termination. Only an occupational physician can decide whether an employee can no longer work or a reintegration process should be initiated. In the latter case, the employee returns to work (possibly on the basis of an adapted set of tasks and/or work schedule).
Scenario 2: fixed-term contract
Employees on a fixed-term contract may be dismissed on the grounds of their long-term incapacity for work. The conditions will depend on the duration of the employment contract.
In the case of an employment contract of less than 3 months, dismissal is possible from the 8th day.
In the case of an employment contract of more than 3 months, dismissal is possible if your employee is ill for at least 6 months. You will then pay severance pay, equal to the salary for the remaining period, limited to a maximum of 3 months.
The term of the employment contract is a key factor in allowing the dismissal of an employee on long-term sick leave. Justified grounds are crucial in the case of an open-ended contract. If you are employing the worker under a fixed-term contract, a long-term absence is in itself a valid reason for dismissal.