Introduction
Absenteeism due to illness is a difficult reality for many employers. Especially when an employee frequently calls in sick, this can put a strain on business operations. However, the law allows for dismissal on these grounds only in exceptional cases. This blog explains why the legal bar for dismissal due to frequent absenteeism due to illness is set so high, what the requirements are, and why this ground for dismissal rarely succeeds in practice.
Frequent Absences Due to Illness as Grounds for Termination
Since the introduction of the Work and Security Act (WWZ) in 2015, frequent absenteeism due to illness has been considered a separate ground for termination (the so-called “g-ground”). This means that, in theory, an employer can attempt to terminate an employee’s employment due to repeated absences, even if there is no long-term incapacity for work.
The rationale behind this ground for termination is that frequent short-term absences can seriously disrupt the continuity of work. In practice, however, judges have been extremely reluctant to grant termination on this ground.
Strict legal requirements
The law sets forth two cumulative requirements that must be met in order to allow for termination based on frequent absences due to illness:
- Serious disruption to business operations
The employer must demonstrate that repeated absences due to illness result in unacceptable consequences for business operations. Examples include disruption to work schedules, interruptions in service, or the need for constant replacement staff, which is no longer feasible. - No Prospect of Improvement
In addition, the employer must demonstrate, based on an expert opinion from the UWV, that no improvement in absenteeism due to illness is expected within 26 weeks. This opinion is mandatory. Without this medical assessment, the application for termination is, by definition, doomed to fail.
This double hurdle makes it extremely difficult to carry out a dismissal on these grounds.
Why does dismissal rarely work in practice?
In practice, employers rarely succeed in their attempts to terminate an employee due to frequent absences due to illness. There are several reasons for this:
- Employers Must Restructure
Employers, particularly larger organizations, are expected to manage absenteeism due to illness internally, for example by hiring temporary staff or redistributing tasks. The court is quick to rule that there is no serious business interest at stake. - Strong protection against illness
Employees enjoy special statutory protection in the event of illness. Dismissal during or as a result of illness is assessed very critically to prevent abuse of this situation. - Strict Requirements for Compiling the Case File
Employers who wish to cite this ground for termination must have a very well-documented absence file, including medical opinions, meeting minutes, and details of reintegration efforts.
Exceptions are rare
Although the law provides for dismissal on these grounds, the number of successful rulings since 2015 has been very limited. Judges apply a strict interpretation of the legal criteria and generally prefer alternatives such as adjusting the employee’s duties or providing a temporary replacement.
Only in very exceptional situations—for example, at small employers where the workload increases dramatically and there are no realistic replacement options—can a claim based on the “g” ground be successful.
Conclusion
Frequent absenteeism due to illness is a recognized but extremely difficult-to-apply ground for termination. Employers facing this situation would be well advised to seek guidance on the options and limitations. The bar is set high, and the risk of the request being denied is considerable. A carefully compiled case file and the timely involvement of experts are crucial. In most cases, it proves more practical to seek solutions within the organization than to initiate legal proceedings.
This blog was written by Stijn Blom, Esq., an employment law attorney at Arbeidsadvocaat.nl B.V. Stijn has extensive experience in employment law and assists employers and employees on a daily basis with a wide range of employment law issues. From dismissal cases to drafting watertight agreements and policies—with his practical and personalized approach, he helps employers and employees move forward. Want to learn more? Visit Stijn’s page.
Arbeidsadvocaat.nl is happy to work with you if you have any questions about frequent absences due to illness. Please feel free to contact us .
April 2025