THE BOTTOM LINE
- Termination After Two Years of Sickness is Robust: Following the official procedure via the Dutch Employee Insurance Agency (UWV) to terminate an employee after 104 weeks of illness provides a strong legal defense, even in highly complex personal circumstances.
- A Pay Stop is a Temporary, High-Risk Tool: While justified in stopping salary payments for an uncooperative or unreachable sick employee, you must reinstate pay the moment they resume compliance—even if they are in detention.
- Mistakes on Pay Carry Heavy Penalties: Failing to lift a pay stop promptly or delaying final payments can result in a statutory penalty of up to 50% on the late wages, turning a procedural issue into a significant financial liability.
THE DETAILS
This case revolved around an employee of Holland Casino who was dismissed after more than two years of sick leave, which was complicated by his pre-trial detention. The employee challenged the dismissal, sought reinstatement, and claimed significant compensation, arguing the employer had acted culpably. The court’s decision provides a clear roadmap for businesses managing long-term, complex employee absences.
The court first confirmed that the termination itself was lawful. The employer had followed the standard Dutch process: after 104 weeks of the employee’s incapacity, and with no prospect of recovery within 26 weeks, they obtained permission from the Dutch Employee Insurance Agency (UWV) to terminate the employment contract. The court dismissed the employee’s request for reinstatement, reinforcing that this legal ground for dismissal is solid when procedural steps are correctly followed.
The employee’s claim for a substantial equitable compensation package was also rejected. Under Dutch law, such a payment is only awarded if the dismissal is a direct result of seriously culpable conduct by the employer. The employee listed several grievances, including a perceived lack of support and flawed reintegration efforts. However, the court found the employer had largely acted reasonably, guided by the company doctor’s advice that the employee had no capacity for work. The court noted minor missteps by the employer but concluded they did not meet the high threshold for serious culpability. This serves as a reminder that while perfection isn’t required, diligent adherence to medical and professional advice is key to defending against such claims.
The real sting for the employer came from its handling of a pay stop. The company had justifiably stopped paying the employee’s salary when he became unreachable. However, it was later discovered he was in detention. Crucially, the employee then participated in a telephone appointment with the company doctor from prison, thereby resuming his reintegration obligations. The court ruled that at this exact moment, the legal grounds for the pay stop evaporated. The employer’s failure to immediately resume salary payments was a costly error. The court ordered the employer to pay a 50% statutory penalty on the wages that were delayed from that point forward, as well as a 50% penalty on the late payment of accrued holiday pay in the final settlement. This underscores a critical lesson: sanctions like a pay stop must be continuously reviewed and immediately lifted once compliance is restored.
SOURCE
Source: Rechtbank Limburg
