Does an employer have to pay wages to an employee who is not working due to a labor dispute?

Year of publication


Year of publication



Court of Appeal Leeuwarden, 2 February 2010,, ljn: BL3726


Attorneys are just like real people and can fight like real people. That is shown in the following case on which the Court of Appeal of Leeuwarden had to rule.

This concerns an employee (the Court ruling does not state whether he was also an attorney or if he held another job), who was employed by an attorney’s office since October 1997 for 32 hours a week. Due to business economic circumstances, in June and July 2007 the attorney’s office discussed with the employee a reduction in working hours of 20 hours a week. It was agreed that the employee would work 20 hours a week from 9 July 2007 until 1 December 2007, but would get paid for 32 hours. On 1 December 2007, the attorney’s office paid the salary for 20 hours a week, after which the employee called in sick on 10 December 2007.

The company doctor did not find any illness or disability, but determined that the employee had complaints relating to the working conditions, which the employee found difficult to discuss with the employer. The company doctor advised mediation to solve the problems. Because the parties had an extensive correspondence on this in advance, the mediation did not start until 1 April 2008. The problem is not solved in the mediation. The wages are paid in full up to and including 1 January 2008 as yet, and thereafter (eventually, after several complications) based on 20 hours a week.

From 1 June 2008, the attorney’s office pays no wages at all, because the employee fails to respond to a letter of the attorney’s office of 2 June 2008 to resume work. In spite of the fact that the company doctor still finds that the employee is not incapacitated to work as a consequence of illness or incapacity, the employee does not resume work, because he states he is mentally incapable to do so, due to the disturbed labor relations. The employment contract is eventually dissolved, by request of the employee, on 15 August 2008. The parties then fight over the matter whether the (full) wages should be paid until 15 August 2008.

The Subdistrict Court and the Court of Appeal grant the wages claim of the employee in interlocutory proceedings. It is considered implausible that the labor contract was reduced to 20 hours a week, so the difference between 32 and 20 hours a week cannot impede granting the wages claim. What remains is the question who should pay for not working. The Court of Appeal finds that there is a ‘situational incapacity to work’: an obstacle to conduct the work agreed, not resulting from illness or incapacity to work. The question is then to whose account and risk not conducting the work should in all reasonableness accrue.

The Court of Appeal finds that the employee has submitted adequate facts and circumstances in the interlocutory proceedings to substantiate that the cause should be to the account of the employer. According to the Court of Appeal, the labor conditions were such that, in all reasonableness, the employee could not be compelled to work, due to impending mental or physical complaints. The Court of Appeal points to the contents of a letter of the attorney’s office to the employee, starting mediation too late, not taking measures to protect the employee’s income when the working hours were reduced, the faltering wages payment and the fact that, in the end, the employee himself had to request dissolution of the employment contract. Furthermore, the employer has not stated that the employee himself did not do enough to remove the causes of his inability to work.


If an employee is not incapacitated to work due to illness or incapacity, but nevertheless does not conduct the agreed work due to a labor conflict, the question whether the employee is entitled to wages, in spite of the fact that he is not working, depends to whose account and risk this not working is. In a ruling of 2008, the Supreme Court found that the employee’s ‘situational incapacity to work’, who is not incapacitated by illness or incapacity to work, but who cannot work to earn wages, due to impending mental or physical complaints, has to submit facts and circumstances, and if necessary has to make a reasonable case that could lead to the assessment that the labor conditions, due to the employer in all reasonableness, were such that he could not be required in all reasonableness, due to the (threat of) mental or physical complaints, to conduct his work. The employer is then in principle obliged to cooperate fully in any efforts to remove the causes of his not working. In this case the Subdistrict Court found that conditions for paying on the wages had been complied with.

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