Entitlement to Wages for an Employee who, for Private Reasons, is not Able to Work and who Reports Sick

An employee who was not entitled to wages because she could not perform the agreed work due to a cause that was attributable to her sphere of risk, was not entitled to wages either when she subsequently reported sick.

An employee worked at a hair styling salon as a hairdresser. In her private life, the employee encountered domestic violence. In January 2023, the situation had become so serious that she and her minor child were placed in a safehouse. In that context she could no longer come to work. She was not allowed to leave the safehouse, certainly not to work. Besides, the location of the safehouse was at a large distance from the location of the employer.
On January 24, 2023, a telephone conversation between the employer and the employee took place as a follow-up of her inability to work. From that moment, the employee stopped working. The employer discontinued the wage payment after February 2023.
When the employee asked for wage payments through her union, the employer refused to pay them. The employer stated that the reason for not working was attributable to the employee's sphere of risk and that there was no illness or sick report.
In summary proceedings, the employee then asked the Sub-district Court to order the employer to continue the wage payments. During these proceedings it became apparent that the parties were divided on the content of the telephone conversation of January 24, 2023. The employee stated that she had reported sick during this conversation. The employer disputed it, however, and stated that the employee had terminated the employment contract during their telephone conversation.
The Sub-district Court found it implausible that the employee would have terminated the employment contract, since the employer had not mentioned it until during the proceedings. Whether the employee had reported sick or not was, actually, of no importance for the Sub-district Court. According to the Sub-district Court, the primary cause of the inability to work had to be found in the safe house-placement, and not in any illness. Since the cause was attributable to the employee's sphere of risk, she was not entitled to wages.
For that reason, the employee's claim was rejected.

The law provides for two provisions that regulate whether an employee who does not work is entitled to wages.
The first provision (Article 7:628 of the Dutch Civil Code), provides for a risk allocation.
This risk allocation implies that the employee who cannot perform his/her work is entitled to wages, unless the cause of not working is attributable to the employee's sphere of risk. If the cause of not working is attributable to the employer's sphere of risk (for instance due to a lack of work) and also if the cause cannot be attributed to anyone's sphere of risk (such as the lockdowns during the Covid 19 pandemic), the employer must continue to pay remuneration in full. If, however, the cause for not working is attributable to the employee's sphere of risk (for example because the employee is kept in custody or because the employee is on strike), the employee is not entitled to wages.
The second provision (Article 7:629 of the Dutch Civil Code) stipulates that an employee is entitled to 70% of the salary if he/she is unable to work due to illness.
The question is what an employee is entitled to if there is a cause for not working that is covered as well by the first article -in which case the employee would either be entitled to 100% of the wage or not entitled to any wages, depending on the question to whose sphere of risk the cause for not working should be attributed to- and by illness, where an employee would be entitled to 70% of the salary.
Under the law, a sick employee is entitled to 70% of the salary that he/she would have received if he/she were not sick. If an employee would not have been entitled to a salary if he/she would not be ill, -since in that case the employee would not have been able to work either- he/she will not be entitled to any wages, This is confirmed in legislative history.
In the above case, the Sub-district Court reached the same conclusion, no entitlement to wages, by deciding that it was not the illness, but the placement in the safehouse, which was attributable to the employee's sphere of risk, that was the primary cause for not working.
Looking for the primary cause of the inability to work is not the appropriate criterion, however.
If an employee would have been sick first (primary cause) and if then a reason would have arisen why the employee would not have been entitled to wages, had he/she not been ill (for instance because he/she was taken into detention), this would imply that the employee is entitled to 70% of the salary during his detention for as long as he/she is ill.
This would be contrary to the legal provision whereby during illness an employee is entitled to 70% of the salary that he/she would have received if he/she had been ill.