Dismissal after two years of illness? It is also possible without a WIA decision.

Bad news for employers: processing times at the UWV are increasing even further. The good news is that if the 104-week waiting period is (almost) over and recovery is not expected within 26 weeks, you can submit the application for dismissal due to long-term incapacity for work without first waiting for the RIV test or the WIA decision. The UWV's Implementation Rules allow this in the event of a delay, as long as the WIA application has been submitted on time.

When is this possible?

After two years of incapacity for work, the prohibition on termination due to illness expires in principle (unless extended, for example due to a wage penalty). You can then request permission from the UWV to terminate the employment contract, provided that:

• No recovery is expected within 26 weeks, and
• Reassignment (possibly with training, within a reasonable period of time) is not possible.

When submitting your application, you must provide:

• a recent statement from the company doctor with the prognosis and work capacity. This is also referred to as the 26-week statement or current assessment;
• information about the first day of illness and the course of the illness/employability;
• an overview of reintegration activities (track 1 and/or track 2);
• a chronological report (employer or company doctor). This can be evidenced by the reintegration report (RIV), occupational expert reports, or expert opinions; and furthermore;
• a copy of the employment contract, the job description, and documents supporting the redeployment efforts.

Pitfalls (and how to avoid them)

• Submitting too early: permission can only be granted once the notice period has expired (or will expire within four weeks of the decision). So plan to submit your application just before the end of the 104 weeks, e.g. in week 99.  
• Forgetting the notice period: the UWV's processing time is deducted from the notice period, but at least one month must remain. The obligation to continue paying wages expires after 104 weeks, so in principle no wages need to be paid during the notice period.
• Late WIA application by employee: the obligation to continue paying wages and the prohibition on termination are extended by the number of days late (and the UWV may refuse the application for dismissal).

What if reintegration was insufficient after all?

Even then, the dismissal application is still possible if the WIA application was submitted on time and there was only a delay at the UWV. The prohibition on termination will not be extended and you do not have to wait for the decision on the WIA. After the waiting period has expired, no wage penalty can be imposed. Please note: an employee can claim administrative damages from the UWV if it subsequently transpires that a wage penalty was wrongly not imposed. This does not affect the dismissal permit that has been granted, but it does underline the importance of a complete and carefully compiled file.

Conclusion

As you can see, the best option is still to conclude a settlement agreement with your employee, because the route via the UWV clearly takes time and therefore money. However, if that is not possible, you do not have to wait for the dismissal application in the event of a UWV delay, provided your file is in order. Do you have any questions or would you like a quick file check (26-week forecast, redeployment, notice period)? Please contact Dennis Oud, Tessa Sipkema, or Elke Hofman-Bijvank; we will be happy to assist you in a practical and timely manner.