Doubts about Sustainability of Employee’s Recovery

An employee who, after absenteeism due to illness, had resumed the agreed work for a period of over four weeks was no longer labour incapacitated, despite the fact that the occupational physician had expressed his doubts about the sustainability of the recovery.
An employee, working as a security officer at a company at Schiphol Airport, fell above a normal level of absenteeism. In July 2022, an employment expert noted that, as of January 1, 2016, the employee had not managed to fully work in her own position for 70% of the time.
In October 2022, a UWV expert report, requested by the employer, showed that the employee was capacitated for her own work at the time. But in January 2023, she reported sick again. The employee resumed work in March 2023. During an absenteeism interview, the employer stated that suitable employment should be sought for the employee because she would not be able to sustain her current job. The employee indicated that night shifts were longer be desirable for her and that she was actively finding a new job.
In April 2023, the occupational physician wrote that the employee had recovered to her normal working hours in all shifts and that she was doing well, but that he recommended to have the sustainability of her recovery tested. In May 2023, the employee had a two-week holiday. In June and July 2023, the employee could not perform work for a couple of weeks as the result of the failure to timely renew her Schiphol access badge.
In May 2023 and August 2023, the occupational physician wrote that there were ongoing doubts about the sustainability of the recovery and that it would be necessary to continue to look into positions in which the employee might work with more regularity. During a conversation in June 2023, the employer stated that the employee should also continue to search for suitable work in the context of an ongoing parallel career track. The employee indicated that she wondered why she could not be reported recovered, since she had already worked at full capacity for quite a while.
End of June 2023, the employee notified the parallel career track company that she had found a suitable position with another employer. The parallel career track company indicated that the employer would, therefore, come up with a proposal to terminate the employment contract. In September 2023, however, the parallel career track company announced that it had closed the parallel career track, since the employee had stopped responding. This was enough reason for the employer to suspend the employee and to discontinue the salary payments. When the employee was invited for an interview, she indicated that she was unable to accept the invitation due to health problems. She also announced that she intended to request a UWV expert opinion. Then the employer summarily dismissed the employee. Subsequently, the employee reported sick to the UWV.
The UWV's expert opinion was published in October 2021. It indicated that there was no "robust medical evidence" why the employee would be incapacitated for her work. The UWV also found that there was no reason to doubt the sustainability of the recovery and that the employee had worked her full shifts and hours from March till September.
Finally, the UWV found that the employee’s incapacity for night shifts had not been demonstrated either.
The summary dismissal resulted in legal proceedings before the Sub-district Court, in which the employee did not contest the dismissal as such, but she did claim compensation from the employer. She also claimed payment of the discontinued wages.
The Sub-district Court ruled that the discontinuation of the wages had been unlawful.
The employee was not ill and, for that reason, was not obliged to cooperate to the parallel career track. The fact that there were doubts about the sustainability of the recovery did not imply that the employee was ill. Under the law, a sick employee is considered to be recovered if he/she is capacitated to fully perform the agreed work for a period of more than four weeks. Therefore, the employer was obliged to still pay the wages up to the date of the dismissal.
The Sub-district Court also believed that there had not been an urgent reason for a summary dismissal. The employee was not obliged to take up employment with another employer. Since there was no illness, the reintegration legislation did not apply. Given the fact that she had already fully performed her own work for several months, there was no other reason why she should search another job. The failure to appear for a meeting with her employer was no urgent reason for a summary dismissal either.
The Sub-district Court ordered the employer to pay the wages. Furthermore, the employer had to pay compensation for termination of the employment contract without observance of the notice period, which compensation was equal to the wages that would have been owed up to the day on which the employment contract could legally have been terminated.
Of course, the employer had to pay the transitional allowance, and also a fair compensation because the employer had behaved in a seriously culpable manner. The amount of the fair compensation was set at € 35,000. The Sub-district Court assumed that, normally, the employment contract would not have ended in the short term and that, due to her illness, it would take approximately a year before the employee would have found another job. In that year, the employee would normally have earned almost €30,000.
The Sub-district Court also took into account, however, that, from one day to the next, the employee was left without income, whereas the employer knew that for quite many years the employee had been coping with serious financial problems as a result of the Dutch Childcare Benefits Scandal.
Finally, the employer had to pay a compensation for non-material damages of € 4,000 net as a mental pain and suffering compensation. By means of medical statements, issued by a psychologist, the employee had demonstrated that she suffered from a depressive disorder and had suicidal thoughts. As for these complaints, the Sub-district Court considered that they had not been caused by the summary dismissal only.

According to the law, doubts about the sustainability of an incapacitated employee’s recovery are no reason to still consider an employee labour incapacitated if he/she fully performs the agreed work. If an employee becomes labour incapacitated again within four weeks, this is seen as a continuation of the current case of the disease, but once the employee has performed his/her own work for four weeks and then falls ill again, it is seen as a new case of sickness. In that case, the employer is, once again, obliged to continue paying the sick pay for a maximum of 104 weeks. If there are reasons to doubt the sustainability of the recovery, the only way to prevent the creation of a new obligation to continue paying sick pay in the event of a new absence due to sickness after four weeks will be that the occupational physician comes up with a disability, arising from the previous sickness, that is relevant to the work the employee has to perform. But if, as in the above case, and in the context of an expert opinion, the UWV subsequently declares that the employee no longer has any restrictions, resulting from an illness, on performing work, there is a huge risk that, in the event of a new reported absence due to illness, the judge will decide that also a new obligation to pay the sick pay has arisen. Although the judge could have -and maybe should have- appointed an expert to assess whether the employee still had work related restrictions resulting from her illness or disease, in practice judges often follow the UWV's expert opinion. In practice, however, these opinions are often short, poorly justified and solely based on information from the employee. It is impossible to raise objections to an expert opinion.
In the above case, the employer faced a major problem: an employee with excessive absences who, over and over again, dropped out due to illness, but who could not be dismissed for that reason. Under the law, dismissal due to regular absenteeism is a ground for termination of the employment contract, but it only applies to very small employers for whom the employee's absenteeism due to illness has unacceptable implications for the organization of work in the company. Forcing the employee to find alternative employment that may give less reason to reporting sick is only allowed in the context of reintegration and, therefore, only for as long as the employee is incapacitated for work.

Probably, the employer in the above case decided to summarily dismiss the employee, in order to, at least, enforce termination of the employment contract, and to take the expected sentence to pay the compensations for granted.