Wage sanction: non-compliance with reintegration obligation
An employee is entitled to continued payment of wages during the first two years of illness (104 weeks). During this period, the employee and employer must make efforts towards reintegration. When an employee does not fulfil his reintegration obligations, an employer can impose a wage sanction. Non-compliance with the reintegration obligations occurs, for example, if the employee cannot be reached, does not show up at the company doctor’s office, does not cooperate in drawing up the action plan or refuses to perform suitable work.
If an employee does not comply with his reintegration obligations, an employer must take various legal steps, depending on the (manner of) violation of the reintegration obligations. This blog discusses the different possibilities for an employer to proceed with a wage sanction. If an employee does not fulfil his reintegration obligations after this, this may even ultimately lead to dismissal.
Official warning
An official warning can be used to send a first signal to the employee. This concerns situations when a violation of the reintegration obligation is not (yet) evident, justifying a suspension or stop in pay. The written warning states the facts that (possibly) indicate a violation of the reintegration obligation. An employer may state in the warning that a wage suspension or wage freeze will be applied in case of repetition. An official warning may be given before a wage suspension or wage freeze, but this is not mandatory.
Suspension of wages
Under Article 7:629(6) of the Civil Code, the employer may suspend the employer’s wages if the employee violates written control regulations. These control rules allow the employer to check whether the employee is actually sick. Consider the situation where an employee fails to show up at the appointment with the company doctor or if the employee is unreachable for the employer and the company doctor. An employee must inform the employer at what times he is hard to reach due to a medical appointment, for example, so that the employer can take this into account.
The salary suspension is intended as a means of pressure. Once the employee still complies with the monitoring requirements, he is entitled to continued wage payment for the period that wages were suspended. There is thus a right to retroactive wage payment.
Wage stop
Article 7:629(3) of the Civil Code lists six cases in which the employer can stop the employee’s wages. Some examples are: deliberately causing the illness, hindering or delaying recovery, refusing to perform suitable work and refusing to cooperate with reasonable reintegration instructions. A wage freeze can also be applied without first imposing wage suspension.
The moment an employee fully meets his reintegration obligations again, the wage freeze must be lifted immediately. The part of the salary that has not been paid does not have to be repaid. This differs from wage suspension, where wages are temporarily suspended.
But first: the duty to warn
Under Article 7:629(7) of the Civil Code, the employer has a duty to warn. This means that an employer is obliged to inform the employee of the reason for the wage freeze or wage suspension within a reasonable period of time. An employer must make it clear that it is a wage freeze or wage suspension. An employee must have clarity about his right to pay as soon as possible so that he can take timely action. If the employer fails to fulfil this warning obligation, there is a risk that the employee may still be entitled to the withheld wages.
Termination or summary dismissal?
Violation of reintegration obligations may lead to termination of the employment contract due to culpable acts or omissions (the e-ground). It follows from case law that dissolution is only possible if the employer has given written notice to comply with the reintegration obligations. Also, an employer must first have tried other sanctions, such as suspension of salary or a wage freeze. It also follows from case law that a request for a termination must be rejected if an expert’s statement is missing, unless the submission of this statement cannot reasonably be required of the employer. Only if these conditions are met does the prohibition on giving notice during illness lapse and the employment contract can be dissolved.
A summary dismissal for violation of the reintegration obligations is less likely. In a recent case before the Court of The Hague, the court upheld the prevailing doctrine that summary dismissal is an ultimum remedium. This means that lesser measures, such as a wage sanction or dissolution of the employment contract, should be imposed first. A summary dismissal is often only possible if there are additional special circumstances. Think, for instance, of an employee who repeatedly fails to comply with his monitoring instructions, neglects agreements made and is unavailable to the employer for a long period of time.
Conclusion
It is good to keep in mind the different wage sanctions when an employee does not comply with his reintegration obligation. We regularly deal with cases in which wage sanctions are imposed. Do not hesitate to contact us. We will be happy to think along with you about the right wage sanction.