Continued payment of overtime during illness?

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Subdistrict Court Haarlem 11 August 2010,, ljn: BN9219


An employee, born in 1959, has worked in a technical position at a pension fund since 2002. At this pension fund, 36 hours is considered fulltime employment, but the employee has worked more hours almost consistently, first 38 hours and then 40 hours. In 2003 he worked 36 hours, for private reasons. From December 2006 until April 2007 the employee is ill. In December 2007 he again falls ill, first with burnout complaints and later for rheumatic arthritis. In the last period of illness, the employer fully pays out the basic salary and the additional hours bonus for overtime for the first 52 weeks, but for the second 52 weeks, the employer only pays 70% of the basic salary. The employee claims payment of the additional hours bonus at the subdistrict court. He states, among others, that the employer is acting contrary to the prohibition on unequal treatment based on chronic illness or occupational disability, because his colleagues are still working additional hours and getting these hours paid.

The employer refuses to pay this, because according to the Collective Labor Agreement (CAO) the employer can request the employee to work two or four hours a week more during a certain period, without this leading to alteration of the working hours. After that definite period, according to the CAO, these additional hours no longer have to be paid out during illness.

The subdistrict court first assesses whether the additional hours have become a fixed part of the employment contract, but finds that this is not the case. The employee has only worked 40 hours a week since July 2007, before that time he worked 38 hours and in 2003 36 hours a week. This does not show an increase with a permanent number of hours. The scheme in the CAO also has a clearly temporary nature. The subdistrict court does acknowledge that the fact that the CAO does not impose restrictions on the number of temporary increases of the number of working hours a week, means that at a given time it will have to be assessed whether the additional hours have become a permanent part of the employment contract.

The subdistrict court does find that there is a prohibited distinction for chronic illness or occupational disability. In this finding, the subdistrict court first takes into account that the employer did not contest that the employee’s illness is a chronic illness or occupational disability. The court also states that the employer has acknowledged that the increase in hours has not been extended because the employee was still ill at the end of 2008, and that during an earlier illness the additional hours scheme was extended, because it was then assumed that there was no long-term absenteeism due to illness. According to the subdistrict court, this is a direct distinction for chronic illness or occupational disability, whilst the employer did not argue that this was a legal exception. The CAO is null and void, due to conflict with the prohibition of unequal treatment. The additional hours bonus claimed by the employee is therefore granted, albeit for 70%, because the law only requires 70% payment of wages during illness. The increase with 50% for late payment, claimed by the employee, is granted.


In this case, the employer made it very easy for the subdistrict court to conclude that the employer acted contrary to the prohibition against discrimination for chronic illness or occupational disability. The employer had not contested that the employee’s illness was a chronic illness or occupational disability, and had indicated that the illness played a role in not extending the temporary contracts. We can understand the results of the proceedings. Based on the so-called legal presumption concerning the extent of the working hours, we think that the employee could also have claimed that the working hours are assumed to be equal to the average working hours of the preceding three months. The employer should in that case be given the opportunity to prove that the actual working hours were less. In the past the assessment was made that this legal presumption has a mandatory nature, in which case the CAO cannot deviate from this.

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