No Suspension of the Sick Pay, despite Suspicion of Ancillary Activities during Illness

Year of publication

2018


Edition number

296


Reference

Court of Appeal 's-Hertogenbosch, 30 January 2018, www.rechtspraak.nl, ECLI:NL:GHSHE:2018:326


Decision

As it turned out, a sick employee had a company registration in the Trade Register. Since the employer could not prove that this company actually generated income, the employer was not allowed to suspend payment of the wage.

A temporary employment agency mainly employed Polish employees. One of them had reported ill in November 2016. Ever since that time, he had remained fully incapacitated for work. In May 2017, the temporary employment agency announced that it would suspend the obligation to pay the sick pay because the employee would be starting up other business activities during his illness. The employer announces that he will not resume payment of the sick pay for as long as the employee does not submit documents relating to the employee’s earnings. The employee states that he has no other earnings elsewhere and, therefore, that he is unable to submit the requested documents. Since the temporary employment agency does not pay the wage, the employee, via summary proceedings, claims payment of the wage by way of a provisional ruling.

The Sub-district Court rejects this claim. According to the Sub-district Court, the employer does not have to accept information that he may reasonably expect to be insufficient.
Until information is provided that can reasonably be considered sufficient, the employer is entitled to continue to exercise his right to suspend the wage.

In appeal, however, the Court of Appeal reaches a different conclusion. The employer states that he is entitled to suspend payment of the wage because the employee remains unwilling to provide the information that the employer needs in order to establish the wage entitlement. Providing information about the employee's earnings is necessary, according to the employer, because the employer may deduct these earnings from the sick pay. According to the employer, the registration of a company at the Polish Chamber of Commerce in the name of the employee shows that the employee generates income. The employee points out that ancillary activity is not contractually prohibited and that the applicable collective labour agreement only prohibits ancillary activity if it is reasonably conflicting with any of the employer’s interests. According to his own statement, the company has not generated income for him.

The preliminary ruling of the Court of Appeal in summary proceedings is, that the employer has not convincingly substantiated that the employee received income during illness for work that he performed during the time in which he could have performed the agreed activities if he had not been ill. In particular, according to the Court, the employer failed to make it plausible that any income from the Polish company would not have also been generated if the employee had not been ill. If the latter had been the case, there would have been income from ancillary activities that the employer would not be allowed to deduct from the sick pay.

It is true that the employer is entitled to suspend the continued payment of wages if the employee does not comply with written, reasonable rules that the employer needs in order to establish the entitlement to wages but, according to the Court, the given rules were not reasonable because the employer has insufficient concrete indications that the employee received any money at all.


Comments

The fact that registration of the employee’s company in the trade register arouses the suspicion of the employer is understandable. But in order to be able to suspend the payment of sick pay, there should also be indications that an income was received, especially when having ancillary activities has not been prohibited up front.



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