Occupational disability remains a complex topic. Acting correctly after an employee calls in sick is by no means a given. In some cases, an employer stops payment without proper grounds. This happens, for example, when the employee is not believed to be sick. Recently, the Court of Appeals in The Hague gave a ruling in such a case, from which important lessons for employers can be learned.
The facts of the case were as follows: an employee, who had not worked for twelve years due to personal circumstances, had been hired by his friend, the employer’s director, as a maintenance mechanic. After only a few months (on 12 June 2022), the employee indicated that he needed to take time off. This request was accepted. A week later, the employee’s partner texted the employer that he was “clearly overworked.” The employee subsequently did not return to work. The employer stopped paying him.
The employee subsequently claimed his wages from 12 June 2022 in court. The employer defended itself, claiming that it hadn’t been clear that the employee was sick, that the employee never officially and personally called in sick, that the employee had been unwilling to work and had never sought contact, and that the employee was still working elsewhere while he stayed away from the employer.
The court nevertheless granted the wage claims. After the text message from the employee’s partner, the employer, being familiar with the employee’s background, could have anticipated incapacity for work even without an official sick notification. Furthermore, the court ruled that a right to wages during illness does not require an explicit sick notification. The court ruled that the employee had been sick since 12 June 2022, attaching value to an expert opinion that had been issued seven months after 12 June 2022 (and after a court decision in first instance). It followed from this opinion that the employee had been sick on 12 June 2022. That opinion had since been confirmed by an insurance physician. The wage claim was thus awarded with an additional partial statutory increase of 10%.
After an employer is reasonably aware that an employee is sick, he must act correctly. An employer may unintentionally violate important legal obligations. If an employer does not call in a company doctor or simply stops wage payment, it can cost him dearly. Even if there was never an explicit notification of illness.
Are you wondering how to act when an employee calls in sick? Are you considering a new sickness policy? Do you have a different question? Expertise in 18 legal fields enables La Gro to offer broad legal assistance. Feel free to contact me or one of my specialist colleagues.
Attorney at Law & Partner