Employer Must Remove Letter from Personnel File

Employer Must Remove Letter from Personnel File
Date: 06-04-2024
Year of publication en number of publication: 2024 / 547
Reference: Sub-district Court of Utrecht, March 12, 2024, ECLI:NL:RBMNE:2024: 1447

The Sub-district Court believed that the employer had erred in its findings that the employee had failed to cooperate in her reintegration and therefore also in its decision to discontinue the wage payment. For that reason, the employer had to remove the letter confirming the latter from the employee’s personnel file.

A municipality had accused an employee of having abused a rail transport subscription. According to the municipality, this had caused a disrupted employment relationship, but already in March 2022, the Sub-district Court had rejected the municipality’s request to terminate the employment contract and had granted the employee’s request to reinstate her to her job.
In June 2022, the employee reported sick due to a car accident. In March 2023, the occupational physician commissioned an expertise examination. The company, commissioned to carry out the examination, had the employee examined by a medical specialist in July 2023 and November 2023, and had requested information from the treating physicians. In December 2023, the company informed the municipality that it had sent the final report, the conclusion of the examination and the drawn-up load capacity for work profile to the employee, since, on December 4, 2023, the employee had revoked her consent to share the examination outcomes.
On January 17, 2024, the employee visited the occupational physician. She then promised that she would still give the commissioned company permission to send the outcomes of the examination to the occupational physician before January 31, 2024.
The municipality wanted things to go faster, however and, on January 18, 2024, it summoned the employee to provide the occupational physician with the results of the expertise examination and the requested practitioners’ information before January 25, 2024.
Failing this, the municipality said it intended to discontinue her wage payment.
On January 31, 2024, the municipality actually terminated the wage payment.
Then the employee started summary proceedings before the Sub-district Court. She did not have herself assisted by a lawyer or another legal assistance provider as her authorized representative. She claimed that the “wage freeze” should be removed from the personnel file. In the event that the claim would not be granted, she also claimed "reasonableness of communication between the employee and her manager together with a mediator in all important future conversations".
In return, the municipality pointed out that removing documents from a personnel file is of a definite nature and can therefore not be claimed as a provisional ruling in summary proceedings. The Sub-district Court took a different view, since documents can always be added to a personnel file when, on appeal or in main proceedings, if it turns out that they had wrongly been removed from the personnel file. Although the Sub-district Court deduced from the summons that the employee actually wanted to have the wage freeze terminated, the Sub-district Court could not grant a claim to that effect, since the employee had not filed so as a claim in the summons.
The Sub-district Court was of the opinion, however, that the municipality had wrongly announced the discontinuation of the wage payment. The municipality stated that it had carried out the "wage freeze" because the expertise examination had taken so long and because its patience had been exhausted as the result of the communication between the parties, the submission of a complaint against the manager by the employee, and a last-minute cancelling of an appointment with the manager on January 11, 2024.
The Sub-district Court acknowledged that the expertise examination had taken a long time, but stated that the examination had proceeded without any significant problems until October 2023, and that the company carrying out the examination had rescheduled an appointment for October 2023 to November 2023, that the employee had stated that she had revoked her consent to sharing the results of the examination on December 4, 2023 because another person’s data had been mixed-up with hers and that the employee had requested and received additional delay because her brother had passed away on December 15, 2023.
The Sub-district Court was of the opinion that all this had insufficiently substantiated that the employee had failed to cooperate in her reintegration. The reason why the municipality had expected that the employee should be required to cooperate in forwarding information from the expertise examination and from the practitioners to the occupational physician before January 25, 2024, whereas the occupational physician had given the employee the opportunity to do so till 31 January 2024, was not entirely clear for the Sub-district Court. Moreover, the occupational physician had declared that she had already received the practitioners’ information on April 17, 2023. Furthermore, according to the Sub-district Court, it was not really clear why the wage freeze had been imposed on February 1, 2024 and not on January 16, 2024. Until January 17, 2024, the employee had never been asked to share the expertise examination’s and the practitioners’ information with the occupational physician.
According to the Sub-district Court, the employee had an interest in not sending the letter about the wage freeze to the UWV along with the application for a WIA benefit. Therefore, the Sub-district Court granted the claim to have the letter removed from the personnel file.


In proceedings before the Sub-district Court, parties do not have to be assisted by a lawyer. If an employee decides to litigate without having him/herself assisted by a lawyer or another legal assistance provider as an authorized representative, this might easily lead to a dilemma for the Sub-district Court. Should the Sub-district Court fully apply the procedural rules that the employee failed to observe properly, or should it offer the citizen seeking justice a helping hand by ensuring a smooth application of the procedural rules?
This may have been the dilemma the Sub-district Court faced in the above case.
The employee wanted resumption of her wage payment, but failed to claim it.