Reporting Sick After Notice of Termination

Reporting sick is not the same as being ill

Let us start with an important misconception: reporting sick is not the same as being ill. A sickness report is no more than an email or a phone call. An employee who reports sick is not thereby automatically “ill” – at least not in the eyes of the law.

When is someone considered ill? The law sets out three cumulative requirements: (1) the employee must be unfit to perform the agreed work, (2) that unfitness must be the result of illness, and (3) that illness must be capable of objective medical diagnosis. The focus is therefore not on how you feel, but on what a doctor can establish medically.

Tension, poor sleep or worrying after bad news are very human responses, but they are not, in themselves, illnesses. The Dutch Supreme Court (Hoge Raad) issued an important ruling on this in 2008. An employee who cannot work because of a disrupted employment relationship, but who has no medically diagnosable complaints, is not “ill” within the meaning of the law. Lawyers refer to this as “situational incapacity for work”: you are unable to work because of the situation, not because of an illness. And that makes a legal difference.

Who decides whether you are ill?

Then the second misconception. Many employers assume that the so‑called case manager (on behalf of the occupational health and safety service) who first contacts the employee after the sickness report determines whether the employee is ill. That is not correct. A case manager is not an occupational physician and is not permitted to assess incapacity for work. Yet in practice it often goes as follows: the case manager records “stress‑related complaints due to workplace conflict” and notes “unfit for work” — even though the required medical assessment has not yet taken place. Only an occupational physician (bedrijfsarts) may determine whether an employee is unfit for work due to illness.

The first point of contact after a sickness report – often someone who is not a doctor – may collect information, but may not give any medical assessment.

What can the employer do in the meantime?

An employer who has doubts about a sickness report — and a report made immediately after a notice of termination is, at the very least, striking — has several options.

Step 1: Do not simply reject, but also do not simply accept.
The employer would be well advised to “take the sickness report under consideration” and indicate that acceptance of the report depends on the medical assessment by the occupational physician.

Step 2: Have the occupational physician assess the case.
If the occupational physician concludes that there are no medical limitations, then there is no illness and the employer is not obliged to continue paying salary. The STECR Work Guideline on Workplace Conflicts (STECR Werkwijzer Arbeidsconflicten) — the widely recognised guideline for occupational physicians — is clear on this point: a conflict is not an illness and should not be treated as such.

Step 3: In case of doubt, request an expert opinion.
Both employer and employee may request an independent expert opinion from the Dutch Employee Insurance Agency (UWV) if they disagree with the occupational physician’s assessment. In practice this often takes a long time, given the shortage of insurance physicians and labour experts at the UWV – but the employer is not powerless in the meantime.

Step 4: Suspend salary if the employee does not comply with control rules.
If the employee refuses to visit the occupational physician, or otherwise fails to cooperate in providing information needed to determine whether he or she is ill, the employer may temporarily suspend salary payments. That salary must be paid retroactively if it later appears that the employee was in fact ill, but suspension can be an effective means of exerting pressure.

Step 5: Stop salary if the employee refuses to cooperate with reintegration.
If it has been established that the employee is indeed ill, but the employee does not cooperate with recovery or return to work, the employer may stop paying salary for that period. Unlike with suspension, there is no obligation to pay the salary retrospectively in the case of a salary stop: the salary for the period of non‑compliance is definitively not owed.

Note: “suspending” and “stopping” sound similar, but they are worlds apart in legal terms. An employer who uses the wrong term in a letter to the employee may later be forced to pay the salary after all.

For all of these steps one golden rule applies: the employer must always warn the employee clearly and in writing in advance before taking any measures. An employer who waits too long loses the right to invoke the measure.

Understanding, but not automatically illness

Dismissal is a serious event, and it is entirely understandable that people react to it both physically and mentally. But the law draws a clear distinction: a comprehensible reaction to an unpleasant situation is not automatically an illness. The occupational physician — and ultimately the court — determines whether that is the case. Not the employee. Employers do not have to follow the employee’s view blindly. The law gives employers more leeway than is often assumed, provided the right steps are taken.

Authors: Mr G.A. Tsiris and Mr W. Schilstra, attorneys at law at Osborne Clarke N.V. in Amsterdam