Netherlands Court Orders Employer to Pay Severance to Discharged Employee

Dutch law generally protects employees with illnesses. A recent case has affirmed this protection, as a court has ordered an employer to issue severance pay to an employee discharged after failing to cooperate with a reintegration plan.

Employees in the Netherlands have the right to payment of at least 70 percent of base salary during sickness for a period of two years. During this two-year period, both the employer and employee have the obligation to work actively to reintegrate the employee into his or her job.

When an employee is not working because he or she claims to be sick, the employer is required to send the employee to the occupational health and safety physician. This physician will inform the employer if the employee is indeed unable to work and of the nature of his or her work limitations. The employer is prohibited from asking about the nature of the employee’s sickness. The employer and employee are then required to create a reintegration plan. This plan can consist of adjustments such as ramping up the employee’s working hours gradually, adapting the workplace to the employee’s limitations, or having a mediation to settle a quarrel between colleagues.

If the employee does not comply with the reintegration plan, the employer is obliged to try to force the employee to do so. The law provides an employer an ascending variety of actions in this regard. First, the employer is required to warn the employee and threaten to stop paying him or her. If that does not work, the employer can actually stop paying the employee. And if that does not work, the employer can ask the court for permission to discharge the employee. An employee is not entitled to a severance payment upon discharge when the termination of the employment contract is due to the employee’s serious culpability. Not complying with the reintegration plan is considered culpable behavior.

Dutch case law shows that employees in these cases often succeed in pleading mitigating circumstances. A court of appeal recently ruled that an employee was entitled to her severance pay despite her culpable behavior during sickness. She violated most of the steps of the reintegration plan. However, as she is homeless and has psychological problems, she was not deemed culpable. The employer had to issue the severance payment despite its many efforts to force the employee to comply with the reintegration plan. This case confirms once again that Dutch law encourages employers to take their sick employees as they find them.

Written by Maartje Oliemans-Ouwehand of Wieringa Advocaten and Roger James of Ogletree Deakins

© 2019 Wieringa Advocaten and Ogletree, Deakins, Nash, Smoak & Stewart, P.C.