Netherlands: Serious Neglect of Reintegration Obligations by Employer Can Lead to High Fair Compensation for Employee

Author: Lisa Smit

When an employee becomes ill, the employer must commence a re-integration process in cooperation with the employee and fulfil specific reintegration obligations. Failure to meet these obligations can result in the Employee Insurance Agency (“UWV”) imposing a wage sanction, obliging the employer to extend salary payments during illness for an additional 52 weeks (on top of the statutory 104 weeks). Alternatively, as illustrated in this case, the employee may be entitled to claim fair compensation.

 

Case

The court considered that the employer committed serious mistakes during the early stages of the employee’s incapacity. The court based this, (e.g.,) on the fact that the employer only engaged the company doctor after one month following the incident that caused the illness. In the meantime, the employer required the employee to continue working (partly) despite the repeated comments from the employee about his deteriorating condition. These signals should have prompted the employer to seek medical advice on the employee’s ability to work before assigning any tasks. Instead, the employee kept working. Also, after the company doctor’s recommendations, the employer did not relieve the employee from work but promised that he would be relieved as much as possible and required him to remain available in emergencies. This course of events shows that the employer did not take the incapacity for work seriously enough. Furthermore, the employer unnecessarily strained the relationship by reclaiming the employee’s company car and company resources, leading to further deterioration of the situation.

The court ruled on a fair compensation for the employee of €60,000 gross.

 

Re-integration obligations

The employer is subject to various reintegration obligations in case of an ill employee. The principal requirements are outlined below.

• The employer is ultimately responsible for managing sickness absences and the reintegration of sick employees.
• The law requires that each employer has a contract with a company doctor or occupational health service.
• The employee must be given the opportunity to return to their original position. If this is no longer feasible due to the employee’s limitations, the employer must actively seek suitable alternative work within the company that aligns as closely as possible with the employee’s abilities.
• The employer is expected to proactively offer suitable work to the employee.
• The costs associated with reintegration are the responsibility of the employer.
• The employer is required to make the employee participate in the reintegration process if they are not cooperating or are insufficiently engaged.

Key points HR:

• Take any indications from an employee that they are ill seriously. Only the company doctor is allowed to determine whether an employee is ill for work. Engage the company doctor promptly (but in any case, no later than 6 weeks after the employee reported ill). Engaging the company doctor is not necessary if it is clear that it is only a minor and short-term illness, such as the flu.
• Take the company doctor’s advice seriously and follow it. If there is any doubt about the accuracy of the advice, a second opinion or expert judgment from the UWV must be requested.
• If an employee does not cooperate with the reintegration process, action must be taken. A warning should be issued, informing the employee that a wage suspension or wage freeze may be imposed.
• Partner with a reintegration agency and/or seek legal guidance if the case is complex.
• Be aware that neglect of the reintegration obligations can result in substantial consequences for the employer, such as a wage sanction (third year of illness) and a fair compensation, as was the case in this matter.
• Since there is an obligation to continue to pay wages during 2 years of illness, as well as a prohibition on termination during illness, we strongly recommend that the above points be observed.