Employment Contract Does not End when Labour Incapacitated Employee Starts Working for Another Employer

An employer mistakenly believed that the employment contract with an employee who had become incapacitated for work had terminated when she had started performing suitable work for another employer. As a result, the employer had to pay the transitional allowance and compensation for termination of the employment contract without observing the notice period.

An employee who had become incapacitated for her work as a production employee in January 2020 had started her reintegration in the parallel track, i.e. looking for suitable work for another employer, in 2021. A career and reintegration coach had guided the process.
In October 2021, the employee informed the coach that she had found work with another employer for a period of six months with effect from November 2021. She asked the coach to pass this information to the employer. The coach confirmed that he had done so.
In December 2021, the employee's representative confirmed a telephone conversation with the employer, in which it was said that, as of November, the employee would no longer be entitled to her wages, since she had other work. In response, the employer blamed the employee for having concealed her employment with the other employer. Since the employee was no longer able to perform reintegration work or any adapted work, the employer stated that the employment contract had been considered terminated as of 1 December 2021. The employee accepted the termination of the employment contract, but lodged a claim with the Sub-district Court for the transitional allowance and the statutory compensation for termination of the employment contract without having observed the statutory notice period.
The Sub-district Court granted these claims. To this end, the Sub-district Court first and foremost stated that it had been established that the employee was permanently incapacitated for work for the employer and that no suitable work was available for the employee within the employer's company. This meant that the employer was obliged to look for suitable work for the employee with another employer. When this other work is found, the law provides that the employment contract with the employer shall remain in force. The statutory compensation shall equal the wages for the period in which the employment contract would have continued if it had been terminated by the employer with due observance of the statutory notice period.
In this case this period was two months and 24 days. The nature of liquidated damages implied that it was not relevant that the employee did not suffer any damage because she had work elsewhere.

In this case, the grapes are sour for the employer, but the law is clear on this point: the employment contract with a labour incapacitated employee does not end when the employee accepts suitable work. Only if the employee's incapacity for work has lasted for 104 weeks, the employer is allowed to terminate the employment contract, be it not until after received permission from the UWV.
The employer can set off the wages that the employee earns with the other employer against the sick pay. Thus, the employee does not lose the entitlement to the sickness benefit.
In the background, it remains of importance as a guarantee the employee may revert to if the suitable work with the other employer ends or if the employee earns less with the other employer than the sickness benefit the original employer has to pay.