What happens if a sick employee refuses to perform suitable work? On Friday, 6 June 20145 the Dutch Supreme Court ruled that in such a case you, as the employer, would be entitled to cease paying his salary in full, even for the hours in respect of which it has been established that the employee was still disabled for work. The Court rendered that decision on the basis of a question that was referred to it by the Cantonal Division of the District Court of Utrecht, the Netherlands, for a preliminary ruling.*
In principle a sick employee is entitled to 70% of his salary for a term of two years
When an employee becomes sick, on the ground of Article 7:629(1) of the Dutch Civil Code (Burgerlijk Wetboek) in principle the employer will be obliged to continue to pay 70% of the employee’s salary for a term of two years. The only exceptions that apply are in six situations specified in the Act. For example, the employer will not have that obligation ‘during the period of time in which’ the employee fails to perform suitable work without having a well-founded ground for doing so in spite of the fact that he has been deemed capable of doing so. But what should ‘during the period of time in which’ be taken to mean? Is that (i) the entire period of time in which the employee refuses to perform suitable work or (ii) only the hours in which the employee has refused to perform suitable work? In the first situation, the employee would receive no salary whatsoever during the period in question, but in the second situation the employee would continue to be entitled to receive his salary for the hours in which he was not (or was not yet) disabled for work. The lower courts have rendered contradictory decisions in this respect.
A sick employee refuses to perform suitable work
That question has arisen in a case in which the Cantonal Division of the District Court of Utrecht must render a decision. The employer had ceased paying the full salary of an employee who was partially disabled for work because during a certain period of time the employee had refused to perform suitable work, in spite of the fact that he was able to do so. The employee is of the opinion that that was not permitted and is now claiming payment of his salary for the hours in that period in which he was disabled for work (or in any event was still completely disabled for work) and for which, in his opinion, he had not ‘refused’ to perform suitable work. The Cantonal Division of the District Court of Utrecht requested the Dutch Supreme Court for an interpretation of this issue.
The Dutch Supreme Court gives a definitive answer: no entitlement to salary
The Dutch Supreme Court answered that question on 6 June 2014. It ruled that ‘during the period of time in which’ must be taken to mean the entire period in which the employee refuses to perform suitable work. Thus, if a sick employee refuses to perform suitable work in spite of the fact that he is capable of doing so, his entire right to receive salary will lapse, including his salary for the hours in respect of which it has been established that the employee was disabled for work (or in any event still disabled for work). Thus, the Supreme Court has given a definitive answer to that question. However, the Supreme Court also noted that under certain circumstances it is possible that ceasing to pay the salary in full could be unacceptable on the basis of the standards of reasonableness and fairness.
*A question referred for a preliminary ruling
Since 1 July 2012 the district courts and courts of appeal may refer questions for a preliminary ruling to the Dutch Supreme Court, the highest judicial authority in the Netherlands. In such cases the lower court requests the Supreme Court, in respect of a pending case, how a particular rule of law that is in dispute in that case must be interpreted. Thus, the case can be definitively settled more quickly as a result of that issue being made clear in advance.