No Fair Compensation for Employee despite Inadequate Reintegration Efforts by Employer

Year of publication

2021


Edition number

426


Reference

Sub-district Court of Amsterdam, 26 April 2021, ECLI:NL:RBAMS:2021:2032


Decision

The mere fact that the UWV had ruled that, at any time, an employer's reintegration efforts had been inadequate was no evidence that the employer had seriously neglected its reintegration obligations. Therefore, the employee was not entitled to fair compensation.

Since 1999, a female employee had been working at a water company in a technical-administrative position. In 2002, after a brain haemorrhage, the employee was granted a partial WAO-benefit. As of 2013, the employee worked in an adapted (low-stimulus) workplace. During a reorganization, in 2017, the employee’s position was broadened.
When she started familiarising with another position in 2018, she soon fell ill again. The occupational physician’s advice was to have an occupational examination carried out by a psychologist and by a labour expert. The occupational psychological examination confirmed that the employee would be able to perform concrete and simple activities at her own pace in a low-stimulus environment. The subsequent occupational physician’s assessment of the employee's labour capacity, demonstrated an increase of her limitations. The labour expert’s examination showed that the employee would only be able to perform work in a sheltered environment.
When, subsequently, the employee asked the UWV for an expert opinion, the UWV decided that the employer's reintegration efforts had been inadequate, partly because it had insufficiently taken the employee’s offer into account to perform adapted work, like she had previously done for a longer period of time. At the employee’s request, the UWV granted her a full WAO benefit shortly afterwards. Then the employer asked the UWV for permission to terminate the employment contract with the employee due to long-term labour incapacity. Once this permission had been granted, the employer terminated the employment contract. In addition, the transitional allowance was paid to the employee..
But then the employee asked the Sub-district Court to also grant her a fair compensation of over € 47,000, arguing that the employer had acted seriously culpably by failing to make sufficient reintegration efforts and to inadequately look for suitable work within its own enterprise.

The Sub-district Court pointed out that there is a fairly high threshold for granting a fair compensation. There should be clear evidence of a seriously culpable act or omission on the part of the employer. Legislative history shows that this only applies in exceptional cases, in which it is evident that the employer's conduct, leading to termination of the employment contract, should be regarded as seriously culpable. As an example, an employer was given who had seriously neglected his reintegration obligations in the event of illness.
The fact that the UWV had decided that, at any time, the employer had not fulfilled its reintegration obligations did not qualify as sufficient evidence for the accusation.
According to the Sub-district Court, he did not recognize seriously culpable act or omission on the part of the employer. The employer acted in accordance with the advice of the occupational physician, had various examinations carried out and made various reintegration efforts. According to the Sub-district Court, it had not been established that the employer would have deliberately kept the employee “reported ill”. Nor was there any evidence that the weight of the broader function had also increased. The employee had never objected to this position either. The Sub-district Court also pointed out that the employee's limitations had increased. Finally, the employee had not demonstrated that the employment contract would not have been terminated if the employer had more accurately investigated the suitable work opportunities for the employee within its own company.


Comments

The bar for granting fair compensation to an employee is set high.
It is not enough if an employer acts culpably. The employer's behaviour should be seriously culpable. When it is about the employer’s shortcomings in reintegration, there should also be evidence of a serious failure to fulfil the reintegration obligations.



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