Netherlands Employment Law Update

Statement of the week: “As of what date is the employee unfit for work”?

The Group Manager Strategy & Development of BME Building Materials Europe (BME) is not comfortable with the competition. On 5 September 2022, he will visit the general practitioner, who concludes ‘overvoltage and make appointment company doctor’. On September 21, the employee will be in contact with his supervisor about the workload and a presentation that the employee must give the next day in Barcelona. On September 22, in Barcelona, the employee reports to his colleagues that he is “not feeling well” and did not give the presentation. On the same day, 22 September, BME submits a request to the UWV to be allowed to terminate his employment due to the loss of his position. The employee calls in sick after a trip in Barcelona on September 27. Why does this matter?

The ban on giving notice during illness plays a decisive role. If the employee is incapacitated for work before reporting to the UWV, the termination ban during illness applies. However, if the employee becomes incapacitated for work after the start of the UWV procedure, the termination ban does not apply.

The crux of this case therefore lies in determining the day on which the employee became ‘incapacitated for work’. The court found:

“that ‘sick (report)’ is not or does not have to be the same as ‘disability’. Someone who is ill is not necessarily incapacitated for work. An employee is incapacitated for work if the employee is unable to perform ‘his work’ in the sense of the ‘stipulated work’ (in terms of work size and content). The moment of calling in sick does not always say anything about the start of the employee’s incapacity for work.”

The court found that the employee was no longer able to perform his own stipulated work at least on 21 September. After all, he announced on that day that he could not give the presentation in Barcelona. The termination ban applies and BME catches blunt.

It doesn’t end there. The employee requested the termination of the employment contract and accused BME of serious culpable conduct. The court agrees and grants the employee (fair) compensation of a total of EUR 380,000 plus EUR 21,000 legal costs. Ouch.

Read the full ruling: here

By Hocker, Netherlands, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact netherlands@transatlanticlaw.com

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