No Entitlement to Wages, despite the UWV Expert’s Confirmation of the Employee’s illness.

An employee who had applied to the Sub-district Court for continued payment of the wages during illness, but who had failed to include the legally required UWV expert opinion to accompany the summons, was still given the opportunity to do so by the Sub-district Court. The employee had subsequently requested an expert opinion. It showed that the UWV insurance doctor considered him incapacitated for work. The Sub-district Court judge rejected the employee's wage claim, however, because the insurance doctor had insufficiently substantiated his expert opinion.
The sole proprietor of a small catering establishment had entered into an employment contract with an employee for a period of one year, starting on May 1, 2023. She had employed the employee as a “temporary on-call zero-hour contract”. On June 10, 2023, the employee reported ill. Via WhatsApp the employee reported recovered on July 6, 2023, and then he asked when he could resume work again. On July 11, 2023, the employer sent the employee a WhatsApp message informing him that had been dismissed, since he had failed to react for three weeks, despite a WhatsApp message the employer had sent him on June 16, 2023. The employer also blamed the employee for not having submitted a medical certificate. The employer said that she doubted whether the employee had actually been ill, partly because he had been spotted in a shopping centre during the period in which he had allegedly been ill.
The employee then claimed some compensations from the Sub-district Court for unlawful termination of the employment contract as of July 11, 2023: the transitional allowance, a fixed compensation for failure to observe the notice period and additional equitable compensation. He also claimed payment of his salary, partly for the period during which he had stated that he was ill.
The Sub-district Court concluded, however, that the WhatsApp message of July 11, 2023 gave no reason to indicate that the employer wanted to summarily terminate the employment contract. The message could as well give reason to assume that the employer was of the opinion that the employee had terminated the employment contract, simply because he had failed to react in any way at all. Therefore, the claimed compensations were rejected. The Sub-district Court did note, however, that it was a culpable fact that the employer had not called in a occupational physician after doubts had arisen about the employee’s sick report. On the other hand, however, according to the Sub-district Court, no reaction had been forthcoming from the employee in any way at all.
The employee's wage claim was partly granted, but as for the wage claim during the duration of the illness, the Sub-district Court could not grant the claim, since the employee had not met the legal requirement of an UWV expert opinion, which should have been attached to the summons. The Sub-district Court therefore stayed this part of the claim so as to give the employee the opportunity to still submit an expert opinion.
Nearly three months later, the employee still submitted the UWV expert opinion to the Sub-district Court. It included the UWV insurance doctor’s view that the employee had been incapacitated for his work as a kitchen employee as of June 10, 2023 till July 5, 2023. Because the employee faced hectic situations, deadlines, production peaks and required flexibility in his work, he did not fully have the capacities for his own work. According to the insurance doctor, it was plausible that the employee had already faced these complaints in the period in which he reported ill. The nature of the complaints and their continuity entail this, according to the insurance doctor.
Even though the employee had submitted the UWV expert opinion now, showing that he had been ill, the Sub-district Court rejected the employee's wage claim. The Sub-district Court was of the opinion that the UWV insurance doctor had wrongly failed to apply the principle of the contradictory, as a result of which the insurance doctor had ignored the employer's contest to the work that the employee was expected to perform. These activities were important for the insurance doctor in order to assess the labour capacity. Furthermore, according to the Sub-district Court, the insurance doctor had failed to provide sufficient insight into the way he had reached the conclusion that the employee had been incapacitated for his work as a kitchen employee. All the employee had submitted to the insurance doctor was the GP information of 2022. The Sub-district Court said he could not understand how, six months later, in the absence of information from a treating physician, the insurance doctor had been able to decide that the continuity of the clinical picture had clearly been demonstrated. Furthermore, according to the Sub-district Court, the insurance doctor had failed to provide sufficient insight into how he had reached the conclusion that the complaints were of an ongoing nature and that, for that reason, it had been plausible that the employee also had these complaints in the period in which he had reported ill.
Since, thus, the employee had not sufficiently substantiated his claim that he had been unable to perform his work due to illness, the Sub-district Court rejected this part of the employee's wage claim.

The Sub-district Court's decision is remarkable. It is quite unusual that judges deviate from the UWV's expert opinion, whereas there is more often a good reason to do so. Insurance doctors’ expert opinions are frequently quite poorly substantiated.
In the above case, however, the employer had failed to ask for the occupational physician’s opinion. Had the employer done so, there would have been medical information about the employee's illness during the period for which wages were claimed. In that case, the employee would not have been dependent on the judgment of the insurance doctor, who had to form an opinion afterwards. For the Sub-district Court there would have been every reason to grant the employee's wage claim then.
We, nevertheless, consider it refreshing and an example that deserves to be followed that a Sub-district Court takes a critical view at the justification of the UWV's expert opinion and does not unquestioningly accept it, especially because there can be no objection to an expert opinion.