Situational incapacity for work ("situatieve arbeidsongeschiktheid") occurs when an employee claims to be unable, in essence for non-medical reasons, to work at his job and/or in his department and/or for his boss; these are usually situations where an employee has called in sick because of an employment conflict. It is unclear in such situations whether or not the employer must continue to pay the employee’s wages. The Dutch Supreme Court recently rendered a judgment on this issue.

Introduction; STECR guidelines

It is not uncommon for employees to call in sick as a result of employment conflicts, sometimes because the employee feels unable to work on account of the tension and sometimes because he thinks it strengthens his position under Dutch employment law. This is referred to as situational incapacity for work. Although it is not a legally-defined concept, the employment conflict guidelines of the Reintegration Expertise Centre (Stichting Expertisecentrum Reïntegratie, "STECR"), which all occupational health and safety physicians in principle follow[1], distinguish four types of situational incapacity for work:

  1. Psychological problems predominate, the employment conflict is secondary. The problems existed long before the employee called in sick;
  2. There is a physical medical problem as well as an employment conflict;
  3. The fact that the employee called in sick is a direct consequence of an employment conflict;
  4. The fact that the employee called in sick is a means of exerting pressure in the employment conflict. Unlike in situation 1, the complaints (stress, restlessness, emotional instability, headaches, etc.) do not substantially pre-date the employee calling in sick.  

According to the guidelines, the absence in situations 1 and 2 is due to medical restrictions, whereas in situations 3 and 4 this is not the case. The guidelines recommend that the employee generally not be characterised as ‘ill’ in situation 3, and that the services of a non-medical professional (e.g. a mediator) be engaged to supervise and intervene in the conflict as soon as possible. The guidelines characterise situation 4 as an abuse of the employer’s duty to continue to pay the employee’s wages and recommend that the employee be advised to return to work, although the introduction of a cooling off period is also possible. In practice, occupational health and safety physicians often recommend a cooling off period (of one to two weeks, but sometimes much longer) where an employee has called in sick as a result of an employment conflict.

But does the employer have a duty to continue to pay the employee’s wages in situation 4 (and 3)? This duty, set out in Article 7:629 of the Dutch Civil Code ("DCC"), only applies to employees who cannot carry out their agreed duties due to illness, and in situations 3 and 4 the employee in principle has no medical restrictions: it is mainly an employment conflict which keeps him from returning to work. In such cases, Articles 7:627 and 7:628 of the DCC must be considered. Under Article 7:627, an employee is not entitled to wages for periods during which he does not perform the agreed work, but under Article 7:628 he is entitled to wages for such periods if the cause of his non-performance is in all reasonableness attributable to the employer. The question then is: is situational incapacity for work a cause attributable to the employer? In a recent judgment, the Dutch Supreme Court considered this issue.

Supreme Court judgment of 27 June 2008

The facts of this case were as follows. A survey measuring employee satisfaction showed that employees were very critical of the company's managing director. The director, shaken by this outcome, called in sick. The occupational health and safety physician recommended a cooling off period of several weeks. During that period, the director in question consulted both his fellow managing director and the chairman of the supervisory board, and indicated to both that he wished to step down. The other director and the chairman, however, did not think that the director had to leave, expressed their confidence in him, and continued to do so. The occupational health and safety physician declared on 23 June 2003 that the director was fully fit for work, and did not change his recommendation when the director reported to him again on 11 July 2003 complaining of stress. However, the director failed to return to work, and also did not return to work when the Industrial Insurance Administration Office endorsed the physician’s recommendation. The director was subsequently dismissed, and then initiated court proceedings claiming that the dismissal was manifestly unreasonable. The district court ruled in the director's favour, but the court of appeal held that the director's failure to work after 23 June 2003 was for his own risk and account, that this constituted a refusal to work and that he therefore was not entitled to any compensation. The Supreme Court agreed with the court of appeal’s decision, stating the following:

'Any employee (...) who relies on (...) situational incapacity as the reason for not performing his work, and who demands the continued payment of his wages for the period concerned, must allege and, if necessary, make a plausible showing of facts and circumstances from which it can be concluded that his employment conditions during that period, the cause of which should in all reasonableness should be for the employer's account, were such that, with a view to existing or threatened psychological or physical symptoms, he could not reasonably be expected to perform his work. It should be noted that the employee in such cases of situational incapacity must, in principle, fully cooperate with efforts aimed at removing the causes of the incapacity. The employee then retains his right to wages pursuant to Article 7:628 of the DCC, and cannot be dismissed on the grounds of a refusal to work '

Comments

Under the Supreme Court’s judgment, an employee who thinks he is incapable of working for situational reasons and therefore refuses to return to work has to jump two hurdles in order to be entitled to the continued payment of wages pursuant to Article 7:628 of the DCC. First, he must make a plausible showing that his actual or threatened psychological or physical symptoms are such that he cannot reasonably be expected to return to work. Given that the occupational health and safety physician (and possibly the Industrial Insurance Administration Office if the employee has requested for a second opinion) have concluded that such an employee has no medical restrictions, the employee will have to rely on a statement of, for example, a GP, psychologist or psychiatrist. A statement from the GP, who is close to the employee, only hears his end of the story and does not have any specific expertise on the symptoms of work-related stress, should not, in our view, be given very much weight. But even if the employee manages to make the necessary showing that he cannot be expected to return to work, he will, secondly, have to demonstrate that the cause of his incapacity for work should in all reasonableness be attributed to the employer. In our opinion, the mere statement that there is an employment conflict is not enough; the employee will have to explain why there is a conflict and make a plausible showing that the employer is responsible for this conflict or, at the very least, that he - the employee - is not more to blame than the employer.[2] The Supreme Court also stressed that such employees must be cooperative and flexible in relation to efforts to repair the employment relationship. This requirement had already been applied in a number of lower court cases. For example, the Court of Appeal of The Hague ruled that an employee who was only willing to participate in mediation if the starting point was that he would retain his former position with the same reporting structure had been insufficiently cooperative. Consequently, the employer could not be held accountable for the employee's failure to work.[3] The Groningen District Court recently took things even further.[4] In a case in which the employer argued that the employee could not return to his former position of team manager because of the risk that conflicts would recur and that the employee would call in sick again, the court ruled that the employee could be expected to participate in a job suitability test (in which he had previously refused to participate) and that he in the meantime had to accept suitable work in another department of the company.

Conclusion

The Supreme Court judgment has removed much of the uncertainty regarding the position of employees claiming to be incapable of working for situational reasons. The starting point is that such an employee does not have the right to continue to have his wages paid under Article 7:629 of the DCC, and is only entitled to continue to have his wages paid under Article 7:628 of the DCC if he can make a plausible showing that: (i) as a result of the circumstances at work, he has suffered or will suffer such psychological or physical symptoms that he cannot be expected to return to work, and (ii) the cause of the circumstances can reasonably be attributed to the employer. The Supreme Court also confirmed that once situational incapacity for work has been established, the employee must fully cooperate with efforts aimed at removing the cause.

The judgment is therefore in line with a trend towards discouraging employees from calling in sick in the event of an actual or threatened employment conflict. This is good news, as experience has shown that the scenario whereby an employee calls in sick and a long-term cooling off period is imposed does not contribute to the resolution of employment conflicts. The fact that the guidelines are being updated is also good news, as it is expected that occupational health and safety physicians will be advised to be more reticent in recommending a cooling off period.