Recurrent Dropout Employee Looses Entitlement to Sick Pay

Recurrent Dropout Employee Looses Entitlement to Sick Pay
Date: 27-04-2024
Year of publication en number of publication: 2024 / 550
Reference: Sub-district Court of Bergen op Zoom, April 18, 2024, ECLI:NL:RBZWB:2024:2592

An employee who resumed work for her own employer after termination of the 104-week qualifying period for the WIA, and who fell ill again, lost her entitlement to the sick pay, because no newly stipulated work had been agreed.
On May 27, 2021, a hairdresser of a hair salon fell ill for work.
At the end of the 104-week qualifying period for the entitlement to a WIA benefit, the employee worked the number of hours that made her under 35% incapacitated for work. That was the reason why the UWV had not granted her a WIA benefit.
On November 29, 2023, the employee reported ill again.
Then a dispute arose between the employer and the employee about the question of whether the employee would again be entitled to sick pay. The employee stated that she had been declared fully recovered on July 8, 2023 and that, subsequently, on July 28, 2023, her working hours had been reduced from 22 hours to 20 hours per week. The employer, however, was of the opinion that the employee had never fully recovered and disputed that the working hours had been reduced to 20 hours per week. According to the employer, the employee had worked 16.5 hours per week in the period July 8, 2023 to July 29, 2023. She had indeed been present 20 hours a week, but had to take extra breaks. In the context of reintegration, according to the employer, the employee had performed suitable work, no new employment contract or newly stipulated work had been established, nor had a justified expectation been created that this was the case.
The Sub-district Court held the opinion that the employee had not substantiated her statement that she had recovered for the stipulated work on July 8, 2023. A UWV labour expert report of August 22, 2023, expressed the expectation that the medical situation and functional capabilities might improve within one or two years, but it did not reveal a full recovery on July 8, 2023. Moreover, during the hearing, in the summer of 2023, the employee declared that she was still gradually increasing her condition.
According to the Sub-district Court, the statement that, on July 28, 2023, the working hours were reduced from 22 to 20 hours per week was also insufficiently substantiated.
The employee was paid 16.5 hours of wages had not stated that she received too little until in November 2023. And the employee had not stated any facts and circumstances from which it might be concluded that new working hours had been tacitly agreed. During the hearing she had acknowledged that she was still increasing the number of hours in the context of her reintegration.
Under these circumstances, the employer was not obliged to pay wages for the hours that the employee was incapacitated for work due to illness. Therefore, the employee's wage claim was rejected.


If an employee resumes work after the end of the qualifying period, it is important for the employer to be very clear about whether this is done as suitable work in the context of reintegration, or because a new employment contract has been entered into, in which the agreed work has changed: different work and/or a different number of hours. The answer to this question determines whether the employee is again entitled to sickness pay in case of a new absence due to illness. If it is newly stipulated work, a new absence due to illness implies that the employer has to continue paying the wages during illness for a maximum of 104 weeks again, be it then on the basis of the wage for the newly stipulated work.