Summarily dismissing an employee is the most severe sanction you can impose as an employer. When the employee is sick, this is even more legally sensitive. One mistake in the assessment, timing, or communication – and the dismissal is annulled by the court, with significant financial consequences.
In this guide, the employment law attorneys from Arslan Advocaten explain exactly when summary dismissal during illness is indeed possible, what risks you run, and how you can act carefully and in a legally correct manner.
⭐ Are you allowed to summarily dismiss a sick employee?
Yes, you can – but only if:
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there is a urgent reason,
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you without delay act,
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you the reason immediately and fully communicate,
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illness is not the cause of the alleged behavior,
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you have carefully investigated what happened.
However, the threshold is much higher than for an employee who is not sick.
⭐ When is summary dismissal during sick leave still possible?
A summary dismissal is only justified in cases of very serious conduct, such as:
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theft (also during illness),
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threats, violence, or serious intimidation,
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sabotage of business processes,
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serious breach of trust,
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deliberate deception or fraud.
Even then, everything must still be carefully, completely and immediately done.
⭐ When is termination during illness NOT allowed?
In practice, it almost always goes wrong when the reason is related to:
1. Work refusal that is illness-related
Only the occupational physician determines whether someone is fit for work.
You must never make your own assessment of whether someone is “really” sick or “pretending”.
Common misconceptions:
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employee does not show up at a reintegration placement → possible medical cause
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employee cannot perform certain tasks → occupational physician must assess this
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employee regularly calls in sick → no urgent reason
This is where things most often go wrong in practice.
2. Alleged fraud regarding illness without evidence
Examples that are NOT sufficient:
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employee was seen in a supermarket
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employee goes for a walk
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employee goes to the gym
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employee is not found at home
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employee does not answer a phone call
This proves nothing about (un)fitness for work.
3. Miscommunication or conflict during reintegration
For example:
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heated discussion,
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employee frustration,
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disagreement about tasks,
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poor communication with supervisor.
This rarely leads to a legally valid summary dismissal.
4. Late action (problem with immediacy)
You must immediately act.
In case of illness, investigations often take longer, which means dismissal soon no longer is regarded as without delay.
5. Incomplete or unclear reason for dismissal
The obligation to inform is strict:
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The reason for dismissal must be complete .
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You may not modify or expand this afterwards.
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All facts must be communicated at once.
An error here automatically means: invalid dismissal.
🔍 Risks for employers in case of wrongful dismissal
Summary dismissal is a legal risk, especially during illness. If it is annulled, this leads to:
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continued payment of wages from the date of dismissal (often months),
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transition payment,
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statutory interest,
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a possible fair compensation (often very high),
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reinstatement of the employment relationship,
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protracted litigation costs,
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employment-law reputational damage.
The financial risk can amount to tens to hundreds of thousands of euros.
🟦 How do you, as an employer, assess whether dismissal is possible?
Use this checklist before you even think about dismissal:
✔ Is there an objective urgent reason?
Not based on suspicions or emotions.
✔ Is the conduct proven?
The burden of proof rests entirely with you.
✔ Is the conduct unrelated to the illness?
Any link to illness makes dismissal virtually hopeless.
✔ Is the occupational physician involved where necessary?
If in doubt about fitness for work, always involve the occupational physician.
✔ Has the employee been heard?
An opportunity for hearing and rebuttal is essential.
✔ Can you communicate all the facts immediately and completely?
Otherwise the dismissal becomes invalid.
✔ Have personal circumstances been taken into account?
Such as:
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age,
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length of service,
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medical limitations,
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psychological issues,
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recent absence history.
🧭 Step-by-step plan for employers (acting safely and carefully)
Step 1 – Gather all the facts
No assumptions, but concrete information.
Step 2 – Consult the occupational physician if fitness for work is relevant
You must never assess a sick leave notification yourself.
Step 3 – Conduct an internal investigation immediately
Quick, thorough, and objective.
Step 4 – Hear the employee
A documented conversation is essential.
Step 5 – Make a well-considered decision
Weigh risks, strength of evidence, and alternatives.
Step 6 – Formulate the reason for dismissal in full
All relevant facts must be communicated at once.
Step 7 – Contact an employment law attorney immediately
Especially in case of illness, legal advice is crucial.
🔄 Alternatives to summary dismissal
A lighter measure often prevents major risks:
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official written warning,
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wage suspension for breaching reintegration obligations,
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improvement or reintegration plan,
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suspension,
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administrative leave,
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termination by mutual consent (VSO).
A settlement agreement is safer and more efficient in many situations.
Conclusion
Summary dismissal during sick leave is legally possible, but high-risk in practice.
Employers must act with extreme care to avoid costly mistakes.
The employment lawyers of Arslan Advocaten guide employers in assessing incidents, drafting dismissal letters, conducting investigations, and negotiating safe alternatives.
Would you like advice on the suitability of summary dismissal during sick leave? We will think along with you right away.
