Sick Pay to Employee with two Employment Contracts

Sick Pay to Employee with two Employment Contracts
Date: 18-09-2022
Year of publication en number of publication: 2022 / 475
Reference: Sub-district Court of Rotterdam, 26 August 2022, ECLI:NL:RBROT:2022:7471

The Sub-district Court ordered an employer to pay the employee the sick pay over the average number of hours she had worked in 2019 and 2020 -which was 16.9 hours per week- even though subsequently it was found that the employee had simultaneously been employed by another employer where she worked 36 hours per week.

A healthcare institution employed an employee in a position that was declared redundant during a reorganisation. In order to be reassigned to another position, the employee had attended training programme for a higher position on two occasions; both times without obtaining the required diploma, however. In order to enable attending the training programme, the number of hours of the employee, originally set at an average of three hours per week, was temporarily extended to an average of 24 hours per week. But in the end, the employer announced that the employment contract would be terminated. Since the employee had reported ill in the meantime, it was agreed that the dismissal procedure would not be started until after the employee had recovered.
Then it turned out that the employee also still worked for another employer, where she had been ill for almost two years, so that an application for WIA-benefit (work and income according to labour capacity) had been submitted. By letter the employer expressed his surprise about this. Then a dispute arose between the parties about the amount of the sick pay. The employee appealed to the legal presumption regarding the extent of the working hours and claimed sick pay based on the average working hours over the months of October, November and December 2020 (44.79 hours per week). The employer, on the other hand, argued that the higher number of hours was due to the training that the employee had attended, to the holiday period, the high work pressure and to the high sickness absence in the care sector due to the Covid 19 pandemic. The employer also pointed out that the employee had worked 36 hours per week for another employer, so that she was not even available for work for the number of hours that the employee had claimed. According to the employer, it would be more realistic to assume the average number of hours per week, calculated over the years 2019 and 2020 (16.9 hours per week). The employer also held the opinion, however, that the employee would not even be entitled to this either, in view of the applicable CLA, being a standard CLA which may not be deviated from in favour of the employee, in which a working time of a maximum of 40 hours per week had been agreed and which stipulated that a full-time employment contract amounted to 36 hours per week, and also in view of the Working Hours Act.

The Sub-district Court took the view that the employee was entitled to a higher sick pay, because the actual amount of work was structurally higher than the originally agreed number of working hours. The Sub-district Court followed the employer, however, in his statement that the reference period used by the employee for the calculation of the sick pay was not representative and that it should be based on the average number of hours over the years 2019 and 2020 (16.9 hours per week). However, the employer's defence that the employee was not available for the work was rejected by the Sub-district Court as the Court found that the employee had already combined both jobs ever since her employment. The appeal to the CLA and the Working Hours Act was also rejected by the Sub-district Court, because it would not be reflected in these provisions that the working hours of both employment contracts should be aggregated. Moreover, the two provisions were not intended to refute the legal presumption concerning the extent of the working hours.


In its judgment the Sub-district Court stated that the Working Hours Act does not reflect that the number of working hours of several employment contracts should be aggregated.
Unfortunately, this statement is incorrect.
The Working Hours Act provides for an article on the overlapping of labour, which obliges the employee who performs work for several employers to take the initiative to provide all employers with all information needed for compliance with the Working Hours Act, and which stipulates that each employer shall subsequently organize the work in such a way that the employee does not perform work in violation of the law. The Sub-district Court of Rotterdam already dissolved an employment contract in 2017 because the Working Hours Act was broken if the hours of two employment contracts were aggregated. As of 1 August 2022, a European Directive has been implemented in Dutch law, stipulating that an employment contract may not contain a prohibition on ancillary activities, unless there is justification for them. As an example of such a justification, the Explanatory Memorandum to this directive also mentions that performing work for someone else might lead to violation of the Working Hours Act.
It is doubtful, however, whether in the above case the employer could achieve a different outcome on appeal. The fact that the employee may have worked in violation with the Working Hours Act in the past does not necessarily preclude the continued payment the employee is entitled to towards the employer, and the fact that the employee is ill also means that she does not have to work for this wage, so that the Working Hours Act is not violated by payment of the wage.