Second Absenteeism after 104-week Period: New Sick-Pay Obligation?

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Court of Appeal, The Hague, 21 November 2017,, ECLI:NL:GHDHA:2017:3240


The employer did not have to pay sick pay again to an incapacitated employee who had become incapacitated due to illness for the adjusted work he performed after he had been absent before and had received wages for the maximum period of 104 weeks then.

The change of the adjusted work as the result of a reorganization did not imply that newly stipulated labour had arisen.

A GGZ institution (mental health institution) employed a female employee in the position of senior scientific researcher. On 29 May 2007, she became fully incapacitated. At the end of the 104-week waiting period (in May 2009) she partly resumed work and she was awarded a partial disability benefit. When, as a result of reorganization, the position of senior scientific researcher expires, the employee starts working in the position of a senior project manager as of 1 November 2009 for part of the original working time. In July 2010 she falls ill again for this work due to the same complaints she had in 2007. The GGZ institution then starts another period of sickness pay to the employee, 100% for the first year and, subsequently, 70%.

Retroactively, however, the UWV grants a WAO benefit, after a four-week waiting period. This benefit is paid to the employer. Then, the GGZ institution reclaims part of the wages from the employee, namely insofar this wage was more than the WAO benefit received from the UWV. To this end, the GGZ institution states that it has unduly paid the wage.

Both the Sub-district Court and the Court of Appeal grant the employer’s application. To this end, the Court assesses whether the salary payments were unduly made. First and foremost, the Court of Appeal states that the statutory system means that, in case of partial disability, the employer is obliged, to continue salary payment for 104 weeks and, on the other hand, that the employer should encourage the employee’s reintegration. According to the Court of Appeal, this system implies that the employer is not obliged to pay wages if after the 104- week period the employee performs other appropriate work and becomes unproductive for this work due to illness again unless the adapted work has become newly stipulated work. Thus, the Court reiterates a position previously held by the Supreme Court. At the time, the Supreme Court decided that the coherence and the balance between the obligation to pay wages and the reintegration obligation would be disrupted if a new notification of sickness would create a new wage pay obligation. Thus, the question of whether the wage had unduly been paid comes down to the question of whether the adapted work should be regarded as newly stipulated work. The Court of Appeal holds the opinion that the partial work resumption that took place during the 104-week period should be regarded as reintegration into partially own work. From the fact that the later work and job change as a result of reorganization would explicitly and exclusively concern the job and its activities and that it was agreed that there would be no changes in the legal position of the employee, the Court of Appeal ruled that, also at the time, no newly stipulated work has arisen.


In its judgment, the Court of Appeal states that for the question of whether newly stipulated work has arisen, the most important thing is what, given circumstances, the parties could reasonably expect from each other when the agreements on adapted work were made. In this context, the Court follows the case law of the Central Appeals Tribunal that had to decide on this matter in the context of the question of whether or not a new obligation to continue payment of wages, imposed by the UWV, resulted in a reduction on the WIA benefit.

Thus, the Court departs from earlier case law of Sub-district Courts and other Courts for which it was considered sufficient for the emergence of newly stipulated work that the appropriate work had been carried out during "a not overly short period" and that a medical final stage had been reached. Believing that the employee’s expectations on the emergence of newly stipulated work are decisive, employers may prevent that newly stipulated work will arise (and, therefore, that a new obligation to pay wages will arise) by always clearly agreeing with the employee that the adapted work constitutes suitable work and that the original work will remain the stipulated work.

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