News Update Employment & Pensions

Employee not dismissed despite two years of incapacity for work
10 March 2022

If an employee has been incapacitated for work for two years, this usually means that the employee has not successfully returned to work in a suitable role, and the logical step then is to terminate the employment contract. Nevertheless, this is not always the case, as is evident from a recent judgment rendered by the District Court of The Hague on 14 September 2021.

On 28 August 2018, the employee, who worked as a warehouse assistant for 40 hours per week, became incapacitated for work. As part of the employee's return-to-work process, while incapacitated for work, the employee worked several hours per week for his employer. The hours that the employee worked gradually increased to 16 hours per week. When asked, the Dutch Employee Insurance Agency (“UWV”) issued an expert opinion on 7 November 2019 and declared that the employer had made a sufficient effort to facilitate the employee’s return to work. In July 2020, the employer reported that the employee would be capable of working a maximum of 20 hours per week by the end of the waiting period. The UWV awarded the employee benefits under the Dutch Work and Income According to Capacity to Work Act (Wet werk en inkomen naar arbeidsvermogen), based on 49.7% incapacity for work. However, as a result of an increased workload caused by the pandemic, the employee had neither worked nor been paid a salary since September 2020.

The employer requested a dismissal permit from the UWV, which the UWV refused to grant on the grounds that the employee was deemed capable of working 20 hours per week. In May 2021, the UWV increased the employee’s incapacity rate to 73.07%. The employer requested the sub-district court to terminate the employment contract on the grounds of long-term incapacity for work.

The dispute questioned whether the employee would be capable of performing his own work in an adapted form within 26 weeks. Based on what the parties had agreed that “the work to be performed” involved, an assessment had to be made as to whether the employee was able to perform that work in adapted form. The employer was required to provide sufficient details of what the employee’s own work was – i.e. what the job involved and the number of hours – and also why the employee’s incapacity for work rendered him incapable of performing that work, even in adapted form.

The sub-district court established that it had been the employer’s intention to keep the employee on its payroll at the end of the waiting period, to work – in adapted form – in the warehouse. According to the employer, as a result of the increased workload since the pandemic, the pace and unpredictability of the work in the warehouse had increased to such an extent that it exceeded the employee’s work capacity. The sub-district court found that the employer had failed to put forward sufficient arguments to substantiate that position.

The employer had failed to make it sufficiently clear what evidence existed that the duties that the employee was initially capable of performing (which were mostly light duties) were no longer available due to the increased demand and increased production. The court also held that the employer had failed to provide sufficient evidence that its business operations would be disproportionately harmed if the employee continued to perform his own work in adapted form. The employer had not explained in concrete detail why that would happen now, whereas that had evidently not been the case previously (at least not until July 2020). The court also considered the fact that flexible employees could help during peak moments and that the employee had previously had the actual option of delegating heavier duties to his colleagues in the warehouse.

The court found that the employer had failed to make a sufficiently plausible case that the employee was incapable of performing the duties as specified in the job description in adapted form for 20 hours per week. Due to this, the court rejected the request to terminate the employment contract.

As this case shows, dismissal on the grounds of long-term incapacity for work after a period of two years is not an automatic given. One factor in this case was obviously that the employer itself had stated previously that the employee could continue to work for 20 hours per week; however, even when that proved to be impossible and the employee’s incapacity rate increased, that did still not offer sufficient grounds to terminate the employment contract. The fact that an employee is still working when they have been incapacitated for work for two years can therefore mean that the employment contract cannot be terminated.

For more information, please contact Margot van Herwerden.
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Advocaat | Managing Partner
+31 20 605 61 86
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Advocaat | Partner
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Margot van Herwerden

Key Contact

Advocaat | Senior Associate
+31 20 605 65 04
+31 6 2043 0245