The Bottom Line
- Renewed Financial Risk: A new 104-week (two-year) sick pay obligation can be triggered for an employee who falls ill again, even if they have just completed a previous long-term sickness period.
- The Four-Week Rule is Crucial: If an employee fully resumes their original work for a period of four weeks or more, any subsequent illness is considered a new case, resetting the employer’s sick pay liability.
- Actions Speak Louder Than Paperwork: The court looked past the lack of a formal “recovered” notification, focusing instead on the employer’s own statements, the cessation of medical supervision, and the fact the employee was working full hours for full pay.
The Details
This case involved a classic but costly scenario for an employer. An employee, out sick with a burnout for nearly two years, successfully reintegrated into their role. At the end of the initial 104-week period, the Dutch Employee Insurance Agency (UWV) even denied the employee disability benefits, deeming them sufficiently recovered. The employee officially resumed their original duties, including previously suspended managerial tasks. Just over a month later, however, the employee fell ill again. The employer believed its wage-payment obligation was fulfilled, but the UWV disagreed, imposing a fresh 104-week sick pay duty.
The employer’s argument in court was that the employee never truly completed their reintegration. They contended that the employee was still in the process of rebuilding their capacity for managerial tasks and was therefore performing “suitable work” rather than their full, original “agreed-upon work.” Based on established case law, if an employee performs suitable (but not their original) work and falls ill again after 104 weeks, the employer generally has no further wage payment obligation. The employer argued this principle should apply, effectively meaning their two-year liability was “used up.”
The District Court of Overijssel rejected the employer’s position, siding with the UWV. The judges focused on the practical reality of the situation, not just the formal labels. Under Dutch law, periods of sickness are cumulative unless interrupted by a recovery of at least four weeks. The court found overwhelming evidence that such a recovery had occurred. Key factors included that the company doctor had not seen the employee for over six months, and the employer had admitted during the proceedings that they had “officially started” the employee in their original role on January 1st and did not view subsequent performance issues as signs of illness. This break of more than four weeks was decisive, making the new illness a separate case and resetting the 104-week clock for the employer.
Source
District Court of Overijssel
