In principle, an employer may always choose the candidate it considers best suited for a vacancy. This does not mean that there is no prescribed form for the pre-contractual job application phase. The rights of the applicant are guaranteed, for instance, in the legislation on equal treatment, the Dutch Personal Data Protection Act, the (non-binding) Job Application Code and the recently tightened Medical Examinations Act (“WMK”). In this article we will discuss the rights and obligations that arise from the WMK for the employer and the job applicant. We will conclude with a few practical tips.
Medical examination: a broad concept
Clearly, the object of the job application procedure is to find out whether an applicant is suitable for the vacant position. The WMK places restrictions on the ways this can be achieved. Ever since 1998, under the WMK, employers have not been permitted to ask after potential employees’ health, absenteeism or sickness absence during an interview. The right to request information is accorded solely to medical examiners (certified (company) medical officers) during a medical examination as provided for in the WMK.
Research has shown that many employers have not fully understood the substance of the WMK, or in any case, have not observed it. To discourage such infringements of the WMK, the prohibition of questions about health, absenteeism and sickness absence of a job applicant has been described more precisely in the act. Previously the WMK prohibited questions about health in assessments other than a medical examination setting. The act now no longer uses the terms ‘other assessments’ and ‘medical examination’; this is meant to make it clear that the term ‘examination’ also refers to questions about a person’s health during job interviews. The amendment took effect as of 1 October 2012.
The strict rules of the WMK
As soon as an applicant is asked questions about health, the strict rules of the WMK apply. The WMK makes it clear that medical examinations are only permitted during the job application procedure or for a change in the employment contract if the job in question makes particular requirements of the applicant: a police officer, for instance, or a crane operator.
Some of the rules for medical examinations:
- The advert for the job opening must state that applicants will have to undergo a medical examination.
- The medical examination is the final part of the application procedure, once an employer has decided to hire an applicant.
- Before the examination, the employer must inform the applicant in writing about the purpose of the examination and the questions and medical tests it includes.
- A registered (company) medical officer must carry out the examination.
- During the examination, the doctor may only ask questions that are relevant for the purpose of the examination.
- The doctor may not conduct any tests of pregnancy, serious incurable diseases, hereditary disorders or HIV.
- The doctor must inform the employer whether the applicant is suited for the job or not, but may not pass on any medical information to the employer unless the applicant has given his or her permission.
Possible consequences in the event of non-compliance
If the employer does not comply with the WMK, the job applicant, the company medical officer or the works council can submit a complaint to the Complaints Committee for Pre-employment Medical Examinations (“CKA”). The CKA investigates and decides whether the complaint is valid. In itself, the opinion of the CKA does not have legal consequences, but it can be decisive in legal proceedings.
A job applicant whose complaint is declared valid by the CKA is free to claim damages from the employer on account of an unlawful act. It is even conceivable that an applicant submits that the negotiations were wrongfully broken off and that the employer must reimburse the ensuing damage, or that an employment contract must be concluded after all. It follows from case law that such claims generally do not have much chance of success, since it is very difficult to furnish evidence and to assess the damage. However legal proceedings should be avoided, in view of the uncertain outcome and also to save (legal) costs, time and damage to the image of employer.
Obligations of the job applicant
An employer may not ask about an employee’s health. However, a job applicant may not conceal any health problems that will interfere with his future duties: this is called the ‘disclosure obligation’. But what if the employee disregards the disclosure obligation and shortly after taking up employment, reports in sick (whether in full or in part) for medical reasons which were deliberately not disclosed during the application procedure? According to case law, under such circumstances the employer may be entitled to discontinue payment of the employee’s salary while the employee is on sick leave. In certain cases, termination of employment may even be justified.
On the basis of the WMK, it is advisable not to ask any questions about health during the application procedure. Fortunately, the law offers other ways for an employer to avoid the risk of being tied to an unsuitable / incapable employee. Some examples:
- Point out the disclosure obligation to the applicant as well as the consequences if it is breached, and set this down in writing.
- Include a provision in the employment contract in which the employee declares that he considers himself suited to carry out the agreed work in full.
- Include a valid probationary period clause in the employment contract.
- Start out with an employment contract for a definite period of time.
CMS Newsflash Employment & Pensions, 2013, issue 1