Labour Incapacitated Employee is Entitled to Continued Wage Payment after Termination of the Waiting Period

An employer who had not taken up an employee's offer to perform suitable work after the end of the waiting period, had to pay her the wages for the suitable work the employee had offered to do.
A female employee worked at a driving school as an instructor for agricultural tractors, for 40 hours a week. In August 2020, she fell ill for this work. In July 2022, she resumed work for 30 hours a week, of which 20-24 hours per week doing her own work and -for the remainder- providing theoretical knowledge instruction. Further increase of her own work beyond 20-24 hours a week had proved impossible. Since the theory lessons were limited to six hours a day, the maximum number of working hours stopped at 30 hours a week. The employer was prepared to structurally offer that work. Thus, the employee would earn more than 65% of the salary she had before. On applying for a WIA benefit, a UWV labour expert therefore decided that the employer's reintegration efforts had given a satisfactory result.
Then, the employer offered a new employment contract for 28 hours a week, but the employee declined it. A few months later, the UWV labour expert determined the degree of her incapacity at 23.42%, so that the employee would not be entitled to a WIA-benefit.
The labour expert's report stated that the employer should offer suitable work for 40 hours a week. This would be possibilities for this by extending the number of hours with theoretical knowledge instructions for trucks. In his report, the labour expert advised the employee to seek legal assistance in case the employer did not offer suitable work.
Both the employer and the employee objected to the UWV decision to reject the WIA benefit. The employer did so because of the labour expert’s comment in the report that suitable work should be offered for 40 hours a week. The UWV, however, declared both objections unfounded by. The employee then offered to be prepared to perform suitable work for 40 hours per week. But the employer relied on the fact that earlier the UWV labour expert had ruled that the employer had fulfilled its reintegration obligation and that the employer had offered a new employment contract for the highest possible number of hours of 28 hours a week. When, once again, the employee refused to sign a new employment contract for 28 hours a week, the employer suspended her.
One month later, the employee had to undergo surgery, followed by rehabilitation. Enough reason for the UWV to still grant a WIA benefit. After a while, the employee informed the employer a couple of times that she was available for suitable work again, and she insisted on calling in the occupational physician to determine what work would be suitable.
Four months later, the employee decided to contact the occupational physician herself.
The occupational physician’s advice then was that a mediation process should be started to find a solution for "work-related problems". Two months later, the occupational physician indicated that the employee no longer had any restrictions to perform her own work.
When the employer lodged a request to the Sub-district Court to dissolve the employment contract, this resulted in termination of the employment contract by mutual consent during the hearing of the Sub-district Court.
In summary proceedings before the Sub-district Court, the employee requested continued payment of wages from the date of the end of the waiting period, but the Sub-district Court only granted the wages over the period from the suspension till the date when the WIA benefit had been granted in connection with the surgery. On appeal, however, the Court of Appeal reached a different conclusion.
The Court of Appeal pointed out that, even after the end of the waiting period, an employer remains obliged to offer suitable work. If an employee declares him/herself willing to perform other suitable work and the employer does not enable the employee to do so without good reason, the employee is entitled to continued payment of the wages associated with the accepted suitable work. For that reason, the employer has to demonstrate that no other suitable work was available. The Court held the opinion that, under reference to the report of the UWV labour expert, the employer had failed to do so. According to the Court, the employer's objection to it was declared unfounded because the occupational physician’s opinion on the employee's mental or physical capacity was lacking.
The Court of Appeal ordered the employer to continue paying the wages, with the exception of the period from the surgery until the moment when the employee made herself available for work again after the surgery. According to the Court, the fact that the employee had been entitled to a WIA benefit in the period after the surgery and that the wage had to be offset against this WIA benefit did not prejudice the employee's wage claim.

An employer's obligation to have an incapacitated employee perform suitable work also continues after the end of the waiting period for the WIA-benefit. The presence of suitable work also makes termination of an employment contract due to long-term disability impossible. For performing suitable work, the employer has to pay the wage value of this particular work. This implies that an employer does not have to pay for hours that the employee does not work. If, however, an employer ignores an offer to perform suitable work and if he/she does not explain why the work offered is not suitable, then, under a 2003 judgment of the Supreme Court, the employee is entitled to the salary corresponding to this suitable work offered. This rule also applies after the end of the waiting period.
The striking element in the above case is the role of the UWV labour expert (or labour experts?). When assessing the reintegration report, employment for 28 hours a week was still considered a satisfactory reintegration result. When determining the degree of incapacity for work (several months later; possibly by another labour expert?) suitable work for 40 hours was considered possible and the employee was advised to seek legal help in case the employer did not offer it.
Certainly in the latter, the UWV labour expert far overstepped his/her authority.
This is especially pressing, since an employer has absolutely no options to object to this judgment of the labour expert. In an objection it is only possible to complain about the outcome of the WIA-assessment.