Sooner or later, every employer is confronted with an employee’s absence due to illness. This is obviously unfortunate for the employee, but has significant consequences for the employer as well: work accumulates, the employee’s colleagues come under additional pressure and costs increase – all good reasons to enable the employee to return to work as soon as possible.
During the initial two years of illness, a prohibition of dismissal applies. In practice, many employees appear to view this simply as an opportunity to do nothing. This is however based on a misconception, as not just the employer, but the employee as well, is required to comply with statutory reintegration obligations. The prohibition of dismissal during illness does not mean that an employee cannot be sacked for violating those obligations. This may however not take place before the employer has (i) warned the employee in writing; (ii) stopped paying the employee’s salary; and (iii) received an expert opinion from the Dutch Labour Office (UWV).
As the following rulings demonstrate, failing to fulfil their reintegration obligations can prove costly to the employee.
’s-Hertogenbosch Court of Appeal
The employee in question had been employed as a carpenter since 12 September 2005. On 14 June of that year, he reported sick. The company physician assessed him to be sufficiently fit to carry out suitable tasks (passende arbeid), but the employee was not prepared to do so. As warnings had had no effect, the employer stopped paying the employee’s salary and requested an expert opinion. The subdistrict court in turn set aside the employment agreement due to disturbed labour relations. The employee appealed against this decision and requested continued payment of his salary until the end of the employment, and award of equitable remuneration.
The court of appeal ruled that the employer had justifiably stopped paying the employee’s salary, as the employee had had no reason to refuse to carry out suitable tasks. The salary was declared fully void, including for the working hours during which the employee had been incapacitated. Because the employee had violated his reintegration obligations, he was, in the view of the court of appeal, also not entitled to equitable remuneration.
Rotterdam District Court
The employee in question had worked as a receptionist since 1 July 2009. On 17 April 2017, she reported sick. The company physician assessed her as situationally incapacitated (situationeel arbeidsongeschikt) and advised the parties to enter into discussions.
The employee and her authorised representative in turn set their sights on reintegration outside the company of the employer (second track, in Dutch: tweede spoor). From their standpoint, reintegration at the company of her employer (first track, in Dutch: eerste spoor) was out of the question. A number of warnings, mediation and even two pay sanctions failed to have the desired effect. After the UWV ruled that the employee had failed to fulfil her reintegration obligations, the employer requested a setting aside of the employment agreement.
The subdistrict court ruled that, by refusing to participate in creating a plan of action and by parrying and frustrating first-track reintegration without good reason, the employee had violated her reintegration obligations. In so doing, she had acted in a seriously culpable manner, prompting the subdistrict court to set aside the employment agreement immediately, without award of a transition remuneration. The subdistrict court also ruled that the employer had with good reason stopped payment of the employee’s salary and ordered her to pay the costs of proceedings.
It emerges from both of these judgements that employers are not powerless if an employee seeks ‘refuge’ in illness and avoids full compliance with their reintegration obligations. It is however essential for the employer to select the appropriate approach. First, the employer must do everything in their power to ensure that the employee does fulfil their reintegration obligations. If the employee then violates these, the employer must take action. If this fails to yield the desired result, the way to dismissal is open.