Under Dutch law, an employer must continue paying the salary of an employee who is off work due to illness for at least 104 weeks. Both the employer and the employee must take substantial reintegration measures to assist the employee's recovery. In this regard, the employee is required, among other things, to perform alternative suitable work where appropriate. If the employee refuses to comply with this request, the employer has the statutory right to cease paying the employee's salary.

Until recently, it was unclear whether in such cases the employer could cease paying the employee's salary in full or only for that period when the employee was considered able to perform suitable work.

The Supreme Court has now cleared up any uncertainty in this regard. In a recent decision it ruled that an employee's entitlement to continued payment during illness will lapse in full if he or she refuses to perform suitable work. This means that the employee's right to salary for the period during which he or she was ill will also lapse.

The case involved an employee who was off work due to illness for 50% of his working time. The independent doctor who assessed him ruled that the employee could perform suitable work for the remaining 50% of the time (half days). The employee refused to comply with the doctor's advice and the employer ceased paying his salary in full. The employee contested this decision in court. The Supreme Court confirmed that the employer had acted in accordance with Dutch law by ceasing payment in full, rather than only for the working time during which the employee could perform suitable work.

For further information on this topic please contact Danielle Pinedo at Baker & McKenzie, Amsterdam NV by telephone (+31 20 551 7555), fax (+31 20 626 7949) or email (danielle.pinedo@bakermckenzie.com). The Baker & McKenzie website can be accessed at www.bakermckenzie.com.