Error on Entering into Employment Contract due to Withholding Information about a Disease ?

The employer could not terminate the employment contract of an employee who had withheld the fact that she had a disease, when she applied for a job, because the employer had not demonstrated that the employee knew that she would not be able to perform the agreed work with the restrictions resulting from the disease.

In November 2022, an engineering firm hired a female employee in the position of a consultant. The employee had weekly meetings with her employer to talk about her performance. During one of these conversations she reported physical and mental complaints. The employer then advised her to contact an occupational psychologist, but instead, on her own initiative, the employee visited the consultation hour of the occupational physician on January 16, 2023. In the opinion of this physician the employee was 50% incapacitated for work. During a conversation with the employee on February 23, 2023, she indicated that she had a chronic condition in the form of fibromyalgia.
On February 27, 2023, the employee reported that she was fully incapacitated for work.
On March 22, 2023, the employer suggested the employee to terminate the employment contract. The employee's performance and the restrictions resulting from her fibromyalgia implied that the employer saw insufficient opportunities to deploy the employee. The employer blamed the employee for having withheld her disease from the employer when she applied for the job. The employee, however, refused to accept termination of the employment contract. The occupational physician then proposed mediation.
Instead, however, the employer immediately terminated the employment contract.
The employer relied on error on entering into the employment contract.
In case the employment contract could not be annulled on this ground, the employee summarily dismissed the employee for having provided misleading information about her burden tolerance.
And, in case the employment contract could not be terminated, the employer refused to pay the wages, also due to withholding her disease.
When the employee started proceedings before the Sub-district Court to contest the dismissal, the employer also requested termination of the employment contract, just in case the employment contract would still exist. The latter request was primarily based on culpable behaviour of the employee and, alternatively, on a disrupted employment relationship.

In none of the grounds the Sub-district Court supported the employer's views, however.
Annulment of an employment contract for error cannot be ruled-out, according to the Sub-district Court, but the special nature of the employment contract entails high requirements for annulment of an employment contract. One requirement is that, on entering into the employment contract, the employee knows that his/her health condition is such, that it will significantly and for a long-term restrict him/her in performing the agreed work.
It is up to the employer to prove that the employee knew this.
In this case, the Sub-district Court was of the opinion that the employer had not proven it.
The fact that the employee knew that she suffered from fibromyalgia and that she had been treated for it before her employment was insufficient for that purpose. By treatments of the disease, the employee had actually learned to better deal with her restrictions. The weekly conversations about the employee's performance did not provide the required evidence either. Also the job description gave no reason to assume that the employee knew that her restrictions would prevent her from performing the job.

The Sub-district Court also rejected the summary dismissal, because, likewise, it had not been proven that the employee had withheld complaints of which she knew or should have understood that they would make her unsuitable for the job to be performed.
For the same reason, there was no reason to discontinue the wage payment.
The requested termination of the employment contract was subject to the prohibition on termination during illness. This prohibition on termination would not apply for urgent reasons, but, when ruling on the summary dismissal, the Sub-district Court had already determined that these were missing. Moreover, there was no culpable behaviour, whereas dissolution due to a disrupted employment relationship is not an issue as long as no mediation has taken place.

Annulment of an employment contract due to error on entering into the contract is an attractive option for the employer, since then the employment contract is deemed to retroactively not have existed. It also offers the employer opportunities to avoid the consequences that granting a Sickness Benefit or a WGA benefit usually brings for the employer.
Error is a legal remedy under general contract law.
Due to the protective nature of employment law, for application of an error in employment law the Sub-district Court requires that the employee must have known that he/she was unfit for the work to be performed, due to the disease. The fact that the employee “should have known it” is insufficient. All in all, it places the employer in a particularly awkward position to secure proof.
The other attempts of the employer to get rid of the consequences of the employee's disease in the above case were also unsuccessful. Probably the employer had hoped that the Sub-district Court would still terminate the employment contract, but the options for terminating an employment contract during illness are limited. Only a reason that is not related to the disease would allow it, and that is exactly what was missing in this case.