A sick employee may not be dismissed. But what if an employee reports sick as a result of a conflict with the employer or a colleague? Does this prohibition on termination also apply to this situational incapacity for work? That question was recently dealt with by The Hague District Court.
It is prohibited to dismiss an employee during the time the employee is unfit to perform work due to sickness. The background to this prohibition of termination is that the employer is responsible for the reintegration of the sick employee and not having to worry about the job is beneficial to the employee’s recovery. After all, in principle, the best way for the employee to reintegrate is to return to work at their own workplace.
There is a difference when it comes to the so-called situational incapacity for work. Situational incapacity for work occurs when there is a conflict between the employee and employer or colleagues. In addition, situational incapacity for work can also occur in the event of impending dismissal, without there having to be “flight into illness”. With situational incapacity for work, the employee is unable to perform their duties within the work situation with the current employer, but could do so with another employer. Thus, the employee is not sick in a medical sense.
The question is whether the employee can ‘just’ be dismissed in that case. After all, situational incapacity for work often involves dysfunctioning and/or a disrupted employment relationship, two reasons for dissolution of the employment contract. The Hague District Court addressed that question in a recent judgement.
This case involved the dismissal of an employee of an offshore company installing pipelines in the sea. The employer considered the employee was still not performing well despite an improvement plan and presented the employee with a termination agreement in 2020. Two days later, the employee reported sick.
After almost two years of illness, the employer wants to apply for WIA benefits for the employee. Thereupon, the employee reports fully well again, shortly before the end of the two years that the employer has to continue to pay wages. The company doctor agrees that the employee can indeed perform work fully. However, the latter still does not start working all the hours, partly because the employee refuses to work offshore. Although the company doctor reports that the employee is fit for work, the employee keeps calling in sick. Even mediation does not help to resolve the conflict or reach an agreement on a severance scheme.
The employer therefore asks the court to dissolve the employment contract on the grounds of a disrupted working relationship or dysfunctioning or combination of these two grounds. The employee then argues that there is no sufficient ground for dismissal. Moreover, according to the employee, there is a prohibition of termination because he is ill.
Before assessing whether there is a sufficient ground for dismissal, the court looks at whether there is indeed a prohibition of termination. From the company doctor’s assessment, the court deduces that the employee is not unfit for work on medical grounds. The employee’s incapacity for work is related to a conflict in the workplace at the current employer. Therefore, the incapacity for work qualifies as ‘situational’ incapacity for work.
In case of situational incapacity for work, the prohibition of termination due to sickness may also apply. However, this requires physical or psychological disorders as a result of the conflict in the workplace that prevent the employee from performing the employee’s work. If there is no physical or psychological disorder, the prohibition on termination does not apply and the employee can therefore be dismissed. Here, the subdistrict court follows a Supreme Court ruling from 2008.
Indeed, the Supreme Court ruled then that an employee invoking situational incapacity for work must make it plausible that, as a result of the conflict, the employee cannot reasonably be expected to perform work, this in view of the (threat) of psychological of physical complaints.
The Hague District Court draws the conclusion that it must therefore assess whether there is a conflict in the workplace that leads to psychological disorders, as there were no physical disorders. The reports of the company doctors state that there are no psychological limitations due to the conflict in the workplace that hinder the employee in his work. The fact that the employee relied on the expert opinion of an occupational health expert form the UWV that the work offered was not suitable does not carry any weight for the court. A medical opinion can only be given by a doctor. Therefore, the court finds that the employee is not sick. The prohibition on termination does not apply.
The court then assesses whether there is a sufficient ground for dismissal and whether the employee can be dismissed. This is the case. To be on the safe side, the court opts or the i-ground, the combination of dysfunctioning and a disrupted working relationship.
In principle, situational incapacity for work does not involve illness in the medical sense. Thus, the prohibition on termination during sickness does not apply, even if the employee has formally reported sick. Whether the employee is incapacitated for work due to illness is a judgment reserved to the company doctor and cannot be assessed by the employee or the employer.
However, even in the case of situational incapacity for work, the prohibition on termination may apply if medical (physical or psychological) complaints are added as a result of the conflict in the workplace that prevent the employee from performing their work. A situation that is not imaginary and had also been at issue in this case, given the treatment process the employee had undergone, as the Court’s judgment shows.
Finally, a conflict at work leading to a sick report may also have been caused by psychological or physical complaints of the employee. This was the matter in a recent case before the Den Bosch court of appeal. The employee had threatened his supervisor when the latter addressed him at work. After the argument, the employee went home and reported sick the next day. However, it turned out that he was already sick during the incident. He was seeing his GP with psychological complaints, but had decided not to call in sick because it would be a great strain on his colleagues at the small company. The court therefore concluded that the prohibition of termination during illness did indeed apply.
Do you have a dispute with an employee who has reported sick due to a conflict and work and are you looking for legal advice about your options as an employer? Do you have any other questions about employment law and dismissal? Please contact us:
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