When you are ill, you expect rest, recovery, and guidance. Not that from one day to the next you are summarily dismissed. Yet this happens regularly: during illness, an employer resorts to the most severe measure the law allows.
But is that allowed? And what can you do if this happens to you?
In this comprehensive guide, the employment lawyers of Arslan Advocaten explain your rights, the mistakes employers often make, and how you can successfully challenge the dismissal.
May an employer summarily dismiss you while you are ill?
Yes, they may – but only under very strict conditions.
Illness does not protect against summary dismissal, but in practice it turns out that dismissals during illness almost always unjustified are, because employers make mistakes in:
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the investigation,
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the assessment of your medical situation,
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the timing,
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the evidence,
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or the communication of the reason for dismissal.
Therefore, these cases can often be challenged very successfully by employees.
⭐ When is summary dismissal while on sick leave NOT valid?
Many terminations during sick leave fail for these reasons:
1. Refusal to work is misinterpreted
If you are sick or have limited work capacity, you may:
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cannot perform your normal duties,
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refuse certain tasks because they are not medically advisable,
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need rest,
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cannot reintegrate in the way the employer wants.
➡ Only the occupational physician determines whether you can work, not the employer.
Many employers too quickly assume that you “refuse.” That is legally incorrect.
2. There is insufficient evidence for an urgent reason
For summary dismissal, the employer must have a rock-solid, proven reason have.
Examples of insufficient reasons:
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you were spotted in a supermarket while you were ill,
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you were seen during a short walk,
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you briefly went to the physiotherapist or the gym,
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you did not pick up immediately when your employer called,
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you missed an appointment in the sickness absence process.
These are not urgent grounds for summary dismissal.
3. Emotional argument during a conversation
During illness, emotions often run high. A heated exchange of words or frustration – however undesirable – almost never constitutes a valid reason for summary dismissal.
4. The employer acted too late
An employer must immediately act.
If there are hours or days between the incident and the dismissal, the dismissal may be invalid.
During illness, the investigation often takes longer – which makes the dismissal even more vulnerable.
5. The reason is not communicated clearly or is incomplete
The employer must state the reason for dismissal:
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immediately,
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fully,
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clearly,
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and in one go inform.
Does the employer not do that? Then the dismissal is invalid.
⭐ When is summary dismissal during illness valid?
Exceptional cases:
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violence or threats,
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serious assault,
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theft,
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fraud,
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sabotage.
➡ But even then the employer must still follow all legal requirements.
In practice it often goes wrong.
🔍 Consequences of summary dismissal (also during illness)
The consequences are significant:
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you will receive no pay with immediate effect,
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you have no entitlement to unemployment benefits,
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you often have no entitlement to severance pay,
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you may face recovery of continued salary payments,
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the dismissal remains on your record,
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your position in the labor market is affected.
But: only if the dismissal is justified.
If the dismissal turns out to be unjustified, everything changes.
🟩 What can you do if you have been summarily dismissed while on sick leave?
You have three legal options:
1. Request annulment of the dismissal (job back)
You ask the cantonal judge to declare the dismissal invalid.
If you are found to be in the right:
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your employment contract continues,
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your employer must pay your back wages,
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including vacation pay and statutory interest.
2. Requesting fair compensation
If you do not want to return or the working atmosphere is irreparably damaged, you can file a fair compensation claim.
This can increase considerably, especially if the employer has acted in a seriously culpable manner.
3. Negotiating a termination with unemployment benefits (VSO)
Often the most practical:
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you retain entitlement to unemployment benefits,
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you receive compensation,
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the summary dismissal is withdrawn,
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you are not deemed at fault.
At Arslan Advocaten we sometimes arrange this within 24–48 hours.
⏳ Important: you have only 2 months
The statutory period for contesting summary dismissal is:
👉 2 months from the date of dismissal.
Wait too long? Then the dismissal remains final, even if it is unjustified.
🧭 Step-by-step plan for employees (execute immediately)
Step 1 – Contact an employment lawyer immediately
During illness your evidentiary position is vulnerable. Do not respond yourself.
Step 2 – Request a written dismissal letter
You always have the right to written confirmation.
Step 3 – Gather evidence
Consider:
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advice from the occupational physician,
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agreements in the sickness absence process,
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emails, app messages, employee portal,
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your medical limitations (without a diagnosis),
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messages about your reintegration.
Step 4 – Do not respond substantively to accusations
No defense by email.
Anything can later be used against you.
Step 5 – Discuss your strategy
We advise you on whether:
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recovery,
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compensation,
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or negotiating (VSO)
yields the best result.
🟦 Common examples from practice
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Employer suspects employee of “feigning illness” → later found to be unfounded
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Employee does grocery shopping → not contrary to medical restrictions
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Reintegration goes slowly → no urgent reason
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Miscommunication about working hours → no urgent reason
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Error when reporting sick → administrative, no grounds for dismissal
In all these cases, summary dismissal has been declared invalid or withdrawn.
Conclusion
Summary dismissal during illness is legally possible, but in practice almost always unjustified. Employers make many mistakes, giving employees strong chances to:
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to get their wages back,
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to reverse the dismissal,
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to receive compensation,
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or to leave through a negotiated settlement while retaining unemployment benefits.
Therefore, always seek immediate assistance.
Would you like advice or assistance? Contact us today.
