Employers in the Netherlands Cannot Assess Whether Employees Are Sick

In the Netherlands, an employer cannot simply disregard an employee’s sick report and instead must engage the occupational physician if there are doubts. Until the physician has expressed an opinion on the employee's capacity or incapacity for work, the employer must respect the sick report, and the employee retains their right to a salary and protection from dismissal. The 's-Hertogenbosch Appellate Court recently confirmed that rejecting a sick report and/or stopping salary payments without prompt consultation of the occupational physician is permitted only in exceptional and compelling circumstances.

What was the situation here? 

After the employee had reported sick to both her director and the occupational health and safety service, the director sent her an e-mail the next day informing her that he did not accept the sick report and ordered her to come to work the same day. When the employee did not show up, she was summarily dismissed for failing to come to work in violation of a specific work instruction.

Subdistrict Court: unlawful summary dismissal

The Subdistrict Court rejected the summary dismissal because the employer had not convincingly argued that the employee was not sick. That assessment is reserved for the occupational physician, according to the Subdistrict Court, and the employer failed to engage one.

Appellate Court

On appeal, the employer argued that the key issue was who bears the burden of proving sickness and capacity/incapacity for work in the event of summary dismissal for an unauthorized absence from work. According to the employer, the circumstances warranted a reversal of the burden of proof. In other words, it was up to the employee to prove that she was sick.

The Appellate Court did not concur. The issue did not involve the burden of proof but rather that the employer was of the opinion that it could make a judgment about incapacity for work on its own accord, without engaging the occupational physician. The employer had not taken any steps to have the sick report assessed and had not even called the employee in for an (emergency) examination by the occupational physician. The Appellate Court was of the opinion that, by acting in this way, the employer had violated the mandatory steps for non-acceptance of a sick report such that the summary dismissal was not legally valid.

Takeaways

Although, in practice, we see that employers regularly – rightly – question a sick report and are inclined not to accept such a report, they must be careful not to take the law into their own hands. Always seek the opinion of the occupational physician and use it to determine whether a failure to come to work warrants measures such as a suspension of salary payments or even dismissal. 

*Sander van Walstijn is an intern in Littler’s Amsterdam office.