Information Obligation of the Employer to Long-term Incapacitated Employee

Year of publication

2020


Year of publication

381


Reference

Sub-district Court of Rotterdam, April 24, 2020, ECLI:NL:RBROT:2020:3997


Decision

The employer was not obliged to inform the long-term incapacitated employee that he would be entitled to a higher transitional allowance in case of termination of the employment contract before 1 January 2020.

An employee, who worked as a driver for the transport of hazardous goods at a waste disposal company had fallen ill on December 14, 2017.
When, after 104 weeks of illness, the employee applied for a WIA-benefit (Work and Income according to Work Capacity), the UWV granted the employee an IVA-benefit (for Fully and Permanently Incapacitated Employees) with effect from 12 December 2019, because the UWV held the opinion that the employee would be fully and permanently incapacitated for work. This decision was made on 9 December 2019.
On 20 January 2020, the employer and the employee agreed to terminate the employment contract as of 1 May 2020. The employer would pay the transitional allowance to the employee. They could not agree on the amount of this transitional allowance, however.
The employee argued that the amount of the transitional allowance should be calculated using the legal provisions that applied before 1 January 2020 (resulting in an amount of over € 72,000). The employer was convinced that the legal provisions that applied as of 1 January 2020 (resulting in an amount of almost € 41,000) should be used.
The employee argued that the former law should be used because the employer could have terminated the employment contract before 1 January 2020 due to the long-term incapacity. The employee referred to the preliminary ruling of the Supreme Court of 8 November 2019, in which it was decided that, in principle, an employer is obliged to terminate the employment contract with a long-term incapacitated employee and to pay a severance pay that is at least equal to the transitional allowance that would be due after the day that the employer could have terminated the employment contract due to the employee's long-term incapacity.
The employee also stated that the employer should actively have informed him about his legal status.
The employer, on the other hand, argued that the employee had never asked for termination of his employment contract before 1 January 2020. The employer denied his obligation to inform the employee about his legal status.
The employer and the employee agreed to submit their dispute to the Sub-district Court using a mutually agreed request to resolve it.
First of all, the Court pointed out that the employer could not already have terminated the employment contract on 12 December 2019, due to the employee's long-term incapacity, without the UWV permission that should have been applied for first and because the notice period should have been observed.
Furthermore, the Sub-district Court had the opinion that the long-term incapacitated employee was not automatically entitled to a compensation that was at least equal to the transitional allowance, because the employee should have requested termination of the employment contract and payment of the transitional allowance first, and because it should be clear that the employer had no legitimate interest in maintaining the employment contract. Since the employee had not requested termination of the employment contract before 1 January 2020, according to the Sub-district Court, he was not entitled to a transitional allowance that was calculated by using the rules of the former law. In the view of the Sub-district Court the employer was also not obliged to actively approach the employee and to inform him of his interest in a request to terminate the employment contract before 1 January 2020. In its preliminary ruling of 8 November 2019, the Supreme Court never assumed such an information obligation, and also in a ruling of the Supreme Court of 21 February 2020 regarding partial termination of employment contracts the initiative to terminate the employment contract was left to the employee.
The Sub-district Court rejected a comparison with the active information obligations that an employer has, according to the case law of the European Court of Justice of the European Union, regarding an imminent risk of lapsing of vacation days. What the Sub-district Court did consider of importance was that the employer was not rewarded by taking no action, since he would have been compensated by the UWV for the higher transitional allowance before 1 January 2020 as well as for the lower transitional allowance after 1 January 2020.
The fact that the employee would receive a lower transitional allowance now is hard, according to the Sub-district Court, but it is a result of an amendment of the law for which the employer cannot be held responsible.


Comments

The question whether the employer might be obliged to inform the long-term incapacitated employee about his interest in terminating the employment contract before 1 January 2020 arose when the Supreme Court took its preliminary ruling on 8 November 2019.
At the time, some employers chose to err on the safe side and made long-term incapacitated employees aware of their interest in termination of the employment contract before 1 January 2020, because they would receive the higher transitional allowance from the UWV, but would not receive any compensation from the UWV in case of a compensation claim by the employee.



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