Can I resign while on sick leave in the Netherlands?

Yes. The Dutch ban on dismissal during illness protects you from your employer, not the other way round: you may always resign, sick or not. The question is not whether you can, but what it costs. An employee who resigns while sick, without a new job lined up, usually loses three things at once: continued sick pay, the Ziektewet sickness benefit and unemployment benefit (WW). Here is why, and what the better routes are.

Resigning is allowed, also while sick

Article 7:670(1) of the Civil Code (BW) forbids the employer from giving notice while you cannot work because of illness. No such ban applies to your own notice. You give notice to the end of a calendar month with a notice period of one month, unless your contract or collective agreement sets a different period in writing (article 7:672(3) BW). Notice need not be in writing, but put it in writing anyway, so there is no dispute about what you said and when.

Courts do require one thing: a resignation must be a clear and unambiguous statement. If you say "I quit" in a heated conversation or in a situation that is making you ill, the employer must check that you really mean it and understand the consequences. If the employer does not, the resignation may be invalid (Supreme Court, 12 September 1986, NJ 1987/267, Westhoff/Spronsen). If you resigned on impulse, see further down what you can still do.

What you lose if you resign while sick

Continued pay. While you are employed, your employer must pay at least 70% of your wage for up to 104 weeks of illness (article 7:629(1) BW). That duty ends with the employment contract. Resign, and the pay stops on your last day, however ill you are.

The Ziektewet sickness benefit. If you are ill on the day your employment ends, you can normally claim sickness benefit from the UWV (article 29(2) of the Sickness Benefits Act (ZW)). But the UWV refuses that benefit in whole or in part if you have committed a benadelingshandeling, an act to the detriment of the fund (article 45(1)(j) ZW). Resigning while sick is the textbook example: you give up pay your employer had to continue and pass the bill to the UWV. In practice this is the most expensive mistake.

Unemployment benefit (WW). Once you are fit for work again and have no job, WW is the next step. But an employee who ends the employment relationship themselves, when continuing could reasonably have been expected of them, is culpably unemployed (article 24(2)(b) of the Unemployment Insurance Act (WW)). The UWV then refuses the benefit permanently and in full, unless you are not predominantly to blame, in which case it is reduced (article 27(1) WW). Illness alone is not a reason why continuing could not be expected: while sick you do not have to work and you are paid.

The transition payment. On a resignation by the employee it exists only where the resignation results from seriously culpable conduct by the employer (article 7:673(1)(b) BW). An ordinary resignation forfeits it.

When resigning while sick can make sense

• You have a new job that follows on directly. Then you need no benefit and the question of detriment does not arise. Mind the probation period at the new employer: during probation the ban on dismissal does not apply (article 7:670b(1) BW), so someone who starts a new job while ill can still be let go in those weeks. Start once you have recovered, or ask for the probation clause to be dropped.
• A settlement agreement instead of a resignation. A vaststellingsovereenkomst is not a resignation, but during illness it carries the same risk: the UWV can treat agreeing to a termination while sick as a detrimental act too. See Signing a settlement agreement while sick.
• The employer ends the contract. Let the employer give notice or apply to the court, rather than closing the door yourself. Then you keep the transition payment and you are not culpably unemployed. During illness the employer cannot simply do that: see Can I be fired while on sick leave?.

Ill because of work: stress, burnout or a conflict

People who are ill because of the work situation itself often want out. Resigning is then the worst exit, because you give up your income at the moment you need it. What does work:

1. Report sick and stay reported sick. Your employer must support your reintegration and involve the company doctor (article 7:658a BW). You do not have to work and you are paid.
2. Name the conflict to the company doctor. In a workplace conflict the company doctor often advises a short cooling-off period and mediation. A conflict is not itself an illness, but the complaints it causes are.
3. Ask the UWV for an expert opinion (deskundigenoordeel) if you and the company doctor or employer disagree about your fitness for work or the reintegration (article 7:629a BW). It can break a deadlock.
4. Make the employer move. If you do want to leave, have the employer offer a settlement agreement with proper terms. If the employer is seriously at fault, you can ask the subdistrict court to dissolve the contract and award fair compensation (article 7:671c BW). Where the court finds seriously culpable conduct by the employer, continuing could not be expected of you, which also counts for WW.

Already resigned, and now ill?

You were healthy when you resigned and fell ill afterwards. Until your last day you are still employed: your employer continues your pay and you cooperate with reintegration. If you are still ill on your last day, you claim sickness benefit from the UWV (article 29(2) ZW). Usually you get it. It is different if you already had symptoms when you resigned, or could have known you would fall ill; the UWV may then still find a detrimental act. Once you recover, the WW test follows: a resignation without a new job remains culpable unemployment.

You were already ill when you resigned. Then everything above applies: pay stops on your last day, and sickness and unemployment benefit are at risk. Two things are still worth trying:

• Withdraw the resignation. You cannot withdraw it unilaterally; the employer must agree. Ask in writing, and quickly. Many employers agree, not least because otherwise they face a sick employee who disputes the resignation.
• Dispute that you really resigned. If you resigned on impulse, under pressure or while overwrought, there is a real chance there is no valid resignation: the employer should have checked that you meant it (Westhoff/Spronsen, above). Say so in writing, report sick again and get legal help straight away, from the Juridisch Loket, your union or your legal-expenses insurer.

What to do

• Do not resign while you are ill unless a new job follows on directly.
• If the employer wants you gone, let the employer give notice or offer a settlement, and sign nothing without advice.
• If the problem is the work itself, use the company doctor, mediation and the UWV expert opinion.
• If you have already resigned: ask to withdraw it, or dispute it if it was made on impulse.
• Keep everything in writing and save e-mails and meeting notes.