Netherlands Update: What Should an Employee Say About Their Health During a Job Application?

No one is waiting for an incapacitated employee. And certainly not if that employee has only just been employed. How can you prevent this and what can or cannot you ask during an application procedure?

The employer may not ask the applicant what disabilities, chronic illness or disability he may have. Not even if that information makes an applicant unsuitable for the position in certain cases. This is only different when it comes to a position that may be subject to special requirements in terms of medical fitness. Think of a pilot or a police officer.

The applicant also does not have to provide medical information of his own accord. This is only different if he has such information about his health that he must inform the employer.  But when is there ‘such’ information? What are the consequences of not complying with that obligation to communicate? And what can you pay attention to as an employer?

This question was central to the recent ruling of the District Court of East Brabant. The employee had been working at Stantec B.V. since 2022 on the basis of a fixed-term employment contract. During the employment, it turned out that she was suffering from a chronic disease, fibromyalgia, at the time of employment. This is a condition in which you can suffer from long-term chronic pain in muscles and connective tissue. At the beginning of 2023, she called in sick. Shortly afterwards, the employer informed her that she no longer wanted to continue and that she wanted to conclude a termination agreement. After the employee does not agree to this, the employer annuls the employment contract by letter for error. In the same letter, the employer terminates the employment contract with immediate effect for an urgent reason if the annulment would not stand. The employer provides as a justification that the employee concealed essential medical information during the application. According to the employer, this information was relevant for assessing whether or not she would offer the employment contract to the employee.

‘Such’ information

The court ruled, in line with previous case law, that there was ‘such information’ if the employee actually knew at the time of the conclusion of the employment contract that her state of health was such that this would significantly and for a long time hinder her in the performance of the agreed work. In that case, the employee should have informed the employer of this at the time of signing the employment contract.

Failure to provide this information may result in a loss of the right to wages or to termination of the employment contract. Think of an immediate dismissal or dissolution of the employment contract. Another possibility is to annul the employment contract for error. The latter is less likely to occur in practice.

How did it go in the case of Stantec B.V.?

• Annulment of employment contract due to error?

Stantec B.V.’s claim of error does not apply. It has not been established that the employee had such information about her health when entering into the employment contract that she should have notified Stantec B.V. (in advance). There is nothing to show that she actually knew that her state of health was such that it would prevent her from performing the agreed duties for a long time. Although the employee had to take her limitations into account when looking for a new job, the judge ruled that she did not have to infer from the job description that she would be unfit for the position. It is also important that it does not follow from the company doctor’s report that the complaints that led to the employee calling in sick stem from her condition.

• Immediate dismissal?

Since the annulment for error does not stand, the court assesses whether there has been a legally valid summary dismissal. The concealment of medical complaints can be an urgent reason for dismissal, if the employee knew or should have understood that he was unfit for employment because of those complaints.

The court ruled that the employee did not know or should not have known when entering into the employment contract that, because of her condition, she would be unfit to perform the agreed work. In doing so, the employee did not violate any obligation to notify or otherwise act culpably. There is therefore no question of the urgent reason for dismissal as set out in the letter to the employee.

• Termination of employment contract?

Finally, the employer’s request for termination of the employment contract is also rejected. Since the request for termination of the employment contract is related to the employee’s illness, the prohibition on termination during illness precludes the termination.

The lesson for employers? In any case, make sure you have a clear job description, so that applicants can or must determine whether they may be (un)suitable for the position.

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

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

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