By Jan Dop.
Russell Advocaten is often asked by Embassies and Consulates what to do in the event of employee illness. In general, Embassies and Consulates employing local employees fall under Dutch law and are treated like any other employer in the Netherlands. Therefore, during the first two years of illness, you, as an employer, have several obligations with regard to the employee, such as:
Maintaining the employment contract
- Continuing to pay wages of the employee
- Making efforts for the re-integration of the employee.
Prohibition against termination of employment during an employee’s illness
You are not allowed to unilaterally terminate the employment contract with the sick employee during the first two years of illness. This prohibition does not apply in case of termination:
- During the probationary period
- With immediate effect
- With written agreement by the employee, and
- Due to business discontinuation.
Further, it is possible to ask the Judge to dissolve the employment contract due to personal reasons such as disfunctioning or culpable acting of the employee. The Judge has to deny the request in case it is related to the illness of the employee.
A dismissal in breach with the prohibition against termination is subject to annulment.
Requirement to continue to pay wages
During the first year of absence from work due to illness you must continue to pay at least 70% of the employee’s wages and at least the statutory minimum wages. During the second year, you still have to pay at least 70% of the wages but you do not have to pay the statutory minimum wages any longer. If you do not continue to pay wages, the employee can enforce this in court, including an increase that can amount to half of the salary due.
Re-integration obligation
You are obliged to take care together with the employee that he or she will return to work as quickly as possible. If you do not make (sufficient) effort to achieve the re-integration of the employee, the term for continued payment of wages may be extended. Therefore, engage a company doctor or occupational health and safety service (‘Arbodienst’) and ask them to draw up a problem analysis within six weeks after the first date of reporting ill.
Together with the company doctor or occupational health and safety service you then draw up an action plan specifying the arrangements regarding re-integration made between you and the employee.
During the employee’s illness absence, make sure you will discuss the progress with the employee at least once every six weeks and plan a first–year evaluation after one year of sickness. If the employee is able to work, but only in a different position with changes to the working hours, or by means of training, you will have to explore the options together with the employee. If the employee cannot be re-integrated into your company, you will have to find out in good time whether the employee can re-integrate into another company, which is referred to as “second track” reintegration.
Important: Make sure all re-integration efforts are laid down in writing!
Obligations of sick employee
However, in the event of long-term sickness of an employee the employee must make an effort for re-integration too. If the employee does not fulfil his or her obligations, and, for instance, postings on social media show that he or she is not that sick any longer or impedes re-integration, you can impose sanctions.
More information
Would you like to learn more about your obligations towards sick employees? We will gladly tell you what you may and may not do! Please contact Jan Dop of our Embassy Desk at jan.dop@russell.nl or by phone: +31 20 301 55 55.
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About the author:
Jan Dop is partner and Head of the Embassy Desk at Russell Advocaten. He advises and represents corporations, entrepreneurs, HR departments, Embassies and Consulates in corporate and commercial matters.
