THE BOTTOM LINE
- Consent is Binding: If you, as a self-insured employer in the Netherlands, agree to the government’s simplified disability assessment for an employee over 60, you are bound by that decision, even if it proves financially disadvantageous.
- Policy Stands Despite Legal Flaws: The court upheld the UWV’s (the employee insurance agency) ability to use this “fast-track” policy, even while acknowledging it conflicts with the standard legal process, because it is only applied with the employer’s consent.
- Reintegration and Insurance Risks Remain: Agreeing to the simplified process does not absolve self-insured employers of their statutory reintegration duties or protect them from potential increases in private insurance premiums resulting from the benefit award.
THE DETAILS
A recent ruling from the District Court of Overijssel provides a crucial lesson for self-insured employers (eigenrisicodragers) navigating Dutch disability law. The case involved Buurtzorg, a major home care organization, challenging a disability benefit (WIA) granted to a former employee. The benefit was not awarded after a full medical and occupational assessment but through a temporary, fast-track policy for employees over 60. This “60-plus measure” was introduced by the UWV to manage backlogs, allowing for a simplified review if both the employer and employee agree. Buurtzorg, being responsible for the costs of the benefit, argued the policy was unlawful and that its consent was given under pressure and without full knowledge of the financial implications.
The court’s decision hinged on one critical factor: the employer’s consent. While the judges acknowledged that the simplified assessment deviates from the letter of the WIA law, they classified it as a permissible “extra-statutory favorable policy.” The key element making it permissible is its voluntary nature. Because the policy can only be applied when both the employer and employee agree, the court views the employer’s consent not as a passive acceptance but as an active business choice. The argument that Buurtzorg felt compelled to agree to avoid an employee conflict, or that it later learned of more favorable outcomes had it refused, was not enough to invalidate its initial consent.
This ruling effectively limits the grounds on which employers can challenge these decisions after the fact. Buurtzorg also argued that the policy constitutes illegal age discrimination, a point the Minister for Social Affairs had previously conceded. However, the court dismissed this argument by invoking the “relativity principle,” stating that age discrimination laws exist to protect employees, not the financial interests of employers. For CEOs and legal counsel, the message is clear: the decision to use the simplified 60-plus measure is a strategic one with lasting financial consequences. Once you’ve opted in, the responsibility for benefit payments, ongoing reintegration efforts, and any related insurance cost increases rests firmly with your organization.
SOURCE
Rechtbank Overijssel
