employee, the UWV had imposed a sick pay penalty on an employer, who was a self-insurer for the Sickness Benefits Act. The Central Appeals Tribunal, however, held the opinion that the UWV had not made it plausible that the employer had made insufficient reintegration efforts and it ruled that the UWV should have contacted the employer if it believed that it lacked sufficient information to assess whether indeed no suitable work had been available for the former employee with the former employer.
In September 2016, a temporary agency worker at an employment agency reported sick.
The employment contract ended in November 2016. Since the employee was still ill then, he was entitled to a Sickness Benefit. Since the employer was a self-insurer for the Sickness Benefits Act, the employment agency had to pay the Sickness Benefit.
After the employee had been ill for one year, the UWV carried out a first-year Sickness Benefits Assessment. The employee then retained his right to the Sickness Benefit.
When, after 104 weeks of illness, the employee applied for a WIA benefit the UWV decided that the employer should continue to pay wages for another 52 weeks. The UWV was of the opinion that the employer had started the reintegration too late and that he had not sufficiently substantiated why there had not been suitable job opportunities at the temporary employment agency (track one). The UWV employment expert’s report, upon which the UWV decision is based, showed that the UWV believed that the reintegration had been delayed because the occupational physician could already have had an expert report drawn up three months earlier.
The employer was also blamed for the fact that the employability report that the employer had drawn up insufficiently demonstrated that no suitable work for the employee was available with the employer. In compliance with the UWV's “Gatekeeper” Manual, the employer should therefore have reviewed all functions within its own organization at and below the level of the disabled employee and an assessment of each of these functions should have taken place, based on comparison of the work load of the relevant function. and of the employee's capacity/performance, also taking the employee's capabilities into account.
When the employer unsuccessfully contested the imposed wage sanction in objection and appeal, it was up to the Central Appeals Tribunal to rule on the case in further appeal.
First of all, the Central Appeals Tribunal stated that, incorrectly, a wage sanction had been imposed, whereas it should have been a sickness benefit sanction. After all, the employment contract had expired, so the employer no longer owed wages. Since the employer was a self-insurer, however, sick pay -or the Sickness Benefit- was due. Since the rules for the wage sanction and the sickness benefit sanction have a uniform content, this did not change the substantive assessment of the case.
The Central Appeal Tribunal did not support the blame that the occupational physician should have asked for an expert assessment to be carried out three months earlier. The Tribunal pointed out that, only shortly before the first-year Sickness Benefits assessment, the UWV insurance physician had concluded that the employee had no employment opportunities.
The Tribunal also pointed out that the Gatekeeper Manual indicates that the occupational physician has a certain professional degree of discretion and that what actually matters is whether an occupational physician judges and acts reasonably on the basis of the facts and circumstances known to him/her at the time. In the absence of doubts about the diagnosis, there was no need for the occupational physician to ask for an expert opinion, according to the Tribunal. The fact that the occupational physician still decided to do so later can be explained by the fact that the treatment was terminated at the time due to the practitioner’s bankruptcy.
The Central Appeals Tribunal also rejected the accusation that the employer had not sufficiently substantiated the fact that there were no job opportunities with the employer itself. The employment agency had positions from higher vocational (HBO) level only, exceeding the employee's education and training level. And, according to the Tribunal, if the UWV had considered the employer’s reintegration efforts, made in the first track, insufficient, the UWV should have contacted the employer to obtain the missing information or insight.
The Central Appeals Tribunal revoked the imposed wage sanction because the UWV had not made it plausible that the employer had made insufficient reintegration efforts.
Ever since the government has submitted a bill that should make it impossible for the UWV to impose wage sanctions based on the statement that the occupational physician has not properly or underdetermined the employee's employability, the UWV assessments of the re -integration efforts of employers tend to reflect a strongly increased focus on the employment expert aspects of the reintegration report, especially among large employers. The UWV continuously provides the Gatekeeper Manual with minor tightening-ups and it looks as if all that the UWV employment experts want to do is hair-splitting.
One of the aspects where we observe this tightening-up in practice are the requirements that are set for the substantiation of the statement that no suitable work for the employee is available within the own company. The UWV seems to require that for each position within the company, and within the subsidiaries of other group companies, a description should be provided of the content of the position with a description of the work load of that position on all workload components, so that it can be compared with the employee’s capacity/performance.
In the past, the UWV was satisfied with a much less detailed substantiation for the unsuitability of positions. It is therefore encouraging that, in the above case, the Central Appeals Tribunal stated that all the UWV should do, once it has the impression that the absence of suitable positions for an employee in the employer's company has insufficient been substantiated, is to contact the employer.
Note: The above decision of the Central Appeals Tribunal concerns a case in which one of our firm’s lawyers was the employer’s authorised representative.