Cross-border worker on sick leave? Be careful!

 

Previously, we published an article in which we described the rights and duties of sick cross-border workers and their employers (see: https://www.spee-advocaten.nl/medical-check-up-by-company-doctor-cross-border-aspects).

Recently the court in Overijssel rendered a judgement regarding reintegration of sick workers and the right to continued payment of wages during illness.

The case was as follows: a cross-border worker (residing in Germany and working in the Netherlands) called in sick and submitted a certificate of incapacity for work by his German doctor. His employer then asked him to visit the consulting hours of the company doctor in the Netherlands. The employee did what he was ordered to do and visited the company doctor. According to the diagnosis of the company doctor the employee was not sick, but the employee and the employer “just” had a dispute and he asked them to talk about it. For this reason the employer invited the employee to a meeting, but the employee refused to participate and supported his refusal with a statement of his German doctor, which stated that the employee was not fit enough for this meeting.

Later it turned out that the employee had indeed been sick. He even had to go to hospital for surgery. Because of the wrong diagnosis of the company doctor, the employee had lost faith in him. Nonetheless the employer still wanted him to visit  the consulting hours of the company doctor in the Netherlands. The employee refused to do so, but agreed to visit another company doctor. In the opinion of the employer there was no reason for this and he accused the employee of violating his duty of reintegration. Therefore he withheld the salary of the employee.

Thereupon the employee sought legal advice. The lawyer of the employee held the view that the “verzuimbegeleiding” (absence management) had to take place in Germany and not in the Netherlands, and therefore he demanded wage continuation.

The employer, on the other hand, argued that the company doctor was able to visit the employee in Germany, but he made no concrete proposals.

Eventually the employee filed action on wage continuation against his employer.

In his verdict the judge came to the conclusion that withholding wages during sickness is one of the most far-reaching measures. He took into consideration that both parties agreed about the fact that the employee was ill. His inability to work was hence out of question.

However, the employer questioned the employees right to wage continuation. In his opinion, the employee lost this right because he did not participate in the reintegration process. In this context the judge explained that the employer is not allowed without further ado to withhold wages. First, he should either have contacted the health insurance company of the employee and asked for a “second opinion” or he should have taken certain steps to enable a meeting between the company doctor and the employee. But he did neither. Therefore it was not justified to withhold the wage continuation and the employer had to pay the employee the salary with retroactive effect including the legal interest rate. Moreover, the employer was also sentenced to pay the extrajudicial collection costs and the costs of litigation.

In short, both the employer as well as the employee on sick leave are best advised to inform themselves and ask employment lawyers about their rights and duties in regard to reintegration procedures and wage continuation, especially in cross-border situations.

If you have any questions regarding this or other topics, please do not hesitate to contact one of our employment law specialists. We are happy to help you.