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A VSO during illness: what is and isn't allowed?

A VSO during illness: what is and isn't allowed?

At ZekerArbo , we regularly receive questions about discussing a settlement agreement (VSO) during an employee's illness. This is an important topic because strict rules apply when an employee is sick. We are happy to explain what is and isn't allowed.

What is a VSO?

A settlement agreement (VSO) is a termination agreement between employer and employee. It brings the employment contract to an end by mutual agreement, without the intervention of a judge or UWV. Both parties must agree to its contents.

When is a VSO an option?

A VSO may be an appropriate solution in the following situations:

  • If the employee himself indicates he does not want to return
    Sometimes an employee sees no possibility of returning to the company or even the workforce. If this decision is well thought out, a VSO can be a solution.
  • In case of a long-term disrupted working relationship
    If there is a serious disruption in the working relationship that hinders reintegration, a VSO can open the way to a solution. This must be carefully considered and well documented.

Can you offer a VSO during illness and what should I consider?

Yes, you may discuss a VSO during an employee's illness, but it is important to handle this carefully. There are specific rules you need to consider as an employer:

  1. Being recovered at the time of signing
    An important legal principle is that an employee must be recovered at the time he or she signs the VSO. In practice, we often see "imaginary recovery." This means that the employee is reported recovered and declared to be up for resolution. If an employeenotrecovered at the time of signing, the employee can later challenge the agreement in court. The judge may then rule that the VSO is not legally valid. 
  2. Do not apply pressure
    Dhe employee should not be pressured to accept a VSO. The initiative may come from either side, but it is crucial that the employee can make a decision freely and without coercion. You should not promise "rewards" to ensure that the employee signs. Put in the VSO that the employee has 14 days to think about it after signing. If you don't do this, the employee is automatically entitled to 21 days of reflection time. Also point out to the employee that they can seek legal advice before signing anything. 
  3. Reintegration comes first
    The law says that as an employer, you must do your utmost to reintegrate a sick employee. This means that you must actively work to return to work, either inside or outside your company. Offering a VSO cannot be used to escape your reintegration obligations. Continue to work on reintegration during the process of establishing the VSO. This applies to employers, but equally to the employee. Upon signing a VSO, the right to benefits lapses, as the employee must be recovered when the VSO is signed. This can pose a financial risk to the employee.


How do you tackle it?

If you as an employer or employee want to discuss a VSO during illness, do so openly and transparently. Discuss the situation, explain what a VSO entails, why you want to discuss a VSO and the possible consequences.

  1. Document the process:
    Engage with each other and make sure all steps are well documented. This is in the interest of both the employee and the employer. 
  2. Determine the incontent of the settlement agreement.
    - What should be included in the VSO:
    - The reason for the dismissal.
    - Payment of vacation days and vacation pay.
    - Notice period: the number of weeks or months until the end of the contract.
    - Transition compensation: a compensation for ending the contract.
    - Competition clause: if applicable.
    - Work release: where you no longer have to work but still receive pay.
  3. Test the VSO legally:
    Agreeing a VSO is a legal process, so it is always wise to consult legal counsel when drafting the agreement. This ensures that everything follows the law. Again, this applies to both the employer and the employee.

For more information see www.juridisch.nl/arbeidsrecht/ontslag/vso-betekenis/

Do you have questions about drafting or offering a VSO during illness? Contact the professionals at ZekerArbo. We are ready to help you!