Dutch Court Finds Fraudulent Sick Leave Justifies Summary Dismissal

Sooner or later all employers, including those in the hospitality industry, are faced with sick employees. Apart from the costs, this also brings with it the necessary operational hassle for employers; for example, replacements have to be arranged, which in the current labor market, especially in the case of last-minute sick reports, means that colleagues have to provide cover.

If an employee is sick for a longer period of time, what needs to be determined is whether and to what extent the employee can still work. The fact that employees are not always honest in this regard is demonstrated by a recent ruling of the sub-district court in The Hague.

Employee’s hip pain vanished into thin air

A gas station employee called in sick due to hip pain. The occupational physician confirmed his medical complaints and recommended that he use crutches when walking. When visiting a restaurant in the evening after a night out, however, the gas station’s representative saw the employee working at the checkout. He looked pretty fit and even kept walking back and forth without crutches.

The gas station then engaged an investigation agency to investigate the employee’s movements. The investigation revealed that the employee not only worked at the restaurant but also appeared to have a job as a store assistant, and he did not seem to need his crutches.

Summary dismissal

The gas station summarily dismissed the employee for deception and making statements about his unfitness for work that were contrary to the truth. The employee disagreed and asked the sub-district court to annul his dismissal. According to him, the ban on termination during illness protected him from that dismissal.

The sub-district court gave short shrift to the employee’s behavior

The sub-district court found that the ban on termination during illness did not, in itself, preclude summary dismissal, but there must be an urgent reason justifying the summary dismissal. This was the case here, according to the sub-district court; how the employee carried out work for other employers was in stark contrast to the severe limitations the occupational physician had found.

What, according to the sub-district court, counted heavily against the employee was the fact that he himself had stated that his movements were severely limited without making the caveat that he could carry out light work. The difference between what the employee told the occupational physician and the findings of the investigation agency could, according to the sub-district court judge, mean only that the employee had intentionally misled the occupational physician. This justified summary dismissal.

Be critical of sick employees

While employees are usually upright, there can be those who try to take their employers for a ride. Employers would therefore be wise to be critical when in doubt and to investigate, in close consultation with the occupational physician, whether the employee may be able to carry out modified work.

Should suspicions arise that the employee is not being honest, engaging an investigation agency might help and may provide the necessary evidence to dismiss the employee, whether summarily or otherwise.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.