Sick Employee was not Entitled to a Sickness Benefit during Seasonal Unemployment due to the Existence of an Employment Contract

A female employee with a permanent employment contract and her employer had agreed that she would not work during the low season. During that period she was entitled to an unemployment benefit for seasonal unemployment. But when she was ill during this period of seasonal unemployment, she was not entitled to a Sickness Benefit.
An employee had been working as a guest relations officer at an outdoor museum since 1997. Initially, the employment contracts were consecutively concluded for the duration of seven months, but from October 2007 they had entered into a permanent employment contract in which it was agreed that the employee would work a fixed number of hours during the summer season, from late March till late October, and that she would not work during the low season. During the low season she would not be entitled to any wages, even in the case of illness.
During two years the employee still did some cleaning work during the low season, be it for a smaller number of hours per week, and in the other low seasons she received an unemployment benefit. When the employee reported ill in the summer of 2015, the employer continued to pay her wages until the end of the summer season. Subsequently, the UWV granted the employee an unemployment benefit. Later it was established, however, that the unemployment benefit was wrongly granted because the employee was ill. Since it was the UWV that had made the error she did not have to repay the received benefit.
When summer season of 2016 began, the employee was still ill. The employer then resumed paying the wages. At the end of the 2016 summer season, however, the employee's application for an unemployment benefit was rejected because she was still ill.
When she subsequently applied for a Sickness Benefit, the UWV also rejected this application because she still had a permanent employment contract.
When an objection to the UWV and an appeal to the Court proved unsuccessful, the employee submitted an appeal in cassation to the Central Appeals Tribunal. The Tribunal qualified the agreements between the employer and the employee as an employment contract for an indefinite period, in which the work performance was suspended during the low season. In this context, the Central Appeals Tribunal referred to a decision from 2012 in which the Tribunal had already ruled in a similar employment relationship with employees of the museum. At that time, however, the employment they only dealt with fixed-term contracts. Since the current employment contract is still a still ongoing, according to the Central Appeals Court, there is also an ongoing obligation to continue payment of salary during illness. The Central Appeals Tribunal pointed out that the statutory provision regulating continued payment of wages during illness cannot be derogated from (with a few irrelevant cases excepted), because of its mandatory nature. Therefore the employee was not entitled to a Sickness Benefit.

After the introduction of the Work and Social Security Act in July 2015, it was in many cases no longer possible to offer a fixed-term employment contract to seasonal workers, because the necessary "interval" had in principle been extended from "more than three months" to “more than six months”. With the introduction of the Balanced Labour Market Act on 1 January 2020, also premium differentiation was introduced in the Unemployment Insurance Act (WW), whereby a lower WW-premium is due for all employment contracts that have been entered into in writing and for an indefinite period and that are other than on-call agreements and whereby a higher WW-premium has to be paid for all other employment contracts.
At the time, we already drew your attention to the possibilities that an employment contract for an indefinite period may offer to employers who have work for an employee during the high season but not during the low season. Simply including in the employment contract that no work shall be done during the low season, may offer a number of advantages.
The advantage for the employee is that he/she knows in advance that he/she will have the opportunity to work again next high season. The fact that the employment contract is not terminated at the end of the high season does not imply that no entitlement to an unemployment benefit arises. In order to be able to be entitled to an unemployment benefit, it suffices that the employee “loses his/her hours”. Termination of the employment contract is not required to this extent.
The advantage for the employer is that at the end of the low season there is no termination of the employment contract, as a result of which no transitional allowance will be due, and that the low WW premium will be due, because the employment contract is in writing, entered into for an indefinite period and it is not an on-call agreement. For a long time the latter was denied in the Knowledge Document on Premium Differentiation WW, because not all periods have the same fixed number of working hours. For that reason it would be an on-call agreement. However, the law only requires a fixed number of hours and does not stipulate that the same fixed number of hours should apply in all periods of the year. In March 2022, the Knowledge Document was revised at this regard, and a change to the regulations was announced, which, on the one hand, means that as of 1 January 2023 employment contract of this type will not be regarded as an on-call agreement, but, on the other hand, that the high WW premium will become due. The latter underlines the unemployment benefit risk.
The fact, however, that the Central Appeals Tribunal decided that there is no entitlement to a Sickness Benefit during the low season creates a new problem for employment contracts of this type. This is regrettable since these employment contracts meet the interests of both the employer and the employee in case of seasonal work in a proportionate way.
And in particular it is a shame, because the Central Appeals Tribunal’s considerations are incorrect.
In the first place, it is incorrect to denote this type of employment contract as an employment contract in which the work performance is suspended during the low season. There is no suspension. No work performance during the low season has simply been agreed. This does not mean that there is no employment contract during the low season. Just as easily that it can be agreed that an employee will not work on Fridays, it can be agreed that he/she will not work in January. In both cases, this does not mean that there is no employment contract during the periods when, as agreed, no work is performed.
Secondly, it is incorrect to state that the employer has derogated from the statutory provision regarding continued payment of wages during illness by stating that no sick pay shall be paid during the low season. The statutory regulation aims to continued payment of the salary that would be due if the employee had not been ill. If the employee would not have worked if he had not been ill, the law simply does even impose a wage payment obligation. So there is certainly no prohibited derogation from the law.

Finally, in order to exclude someone from the entitlement to a Sickness Benefit, the law requires that there is an entitlement to wages. Only establishing that there is still an employment contract is not enough. The entitlement to wages for the employee should exist by virtue of the employment relationship.
In the above situation this is not the case.