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In practice, we regularly receive questions about the possibilities of imposing a wage sanction if an employee does not cooperate with their reintegration. Firstly, there is often confusion about the difference between wage suspension and wage stop, but employers also regularly wonder if a wage stop is the right route in a particular situation.
An employer in a ruling by the Midden-Nederland District Court apparently did not have these doubts and imposed a wage stop, but did it hold up?
An employee reported sick on May 30, 2022. On June 2, 2022, the employee then had a car accident. The employee did not resume work afterward.
First wage stop
The employer imposed a wage stop on February 1, 2024. The reason was that the employee allegedly did not cooperate with their reintegration. In summary proceedings, it was determined that it was insufficiently plausible that the employee did not cooperate with their reintegration, and it was ruled that the employer had unjustly imposed the wage stop.
Second wage stop
On February 15, 2024, the employer imposed another wage stop. The reason for this wage stop was that the employer suspected that the employee was performing side jobs and the employee did not want to provide information about this. The employer categorized this wage stop under Article 7:629 paragraph 3 sub d of the Dutch Civil Code: refusing to cooperate with reasonable instructions given by the employer, or sub b: hindering or delaying recovery because the employee continued to work during their illness. The employer had discovered that the employee, in addition to their income, also received a sickness benefit.
The employee demanded payment of the overdue salary in summary proceedings.
The court determined that an employee is not entitled to wages during illness if one of the seven situations listed in Article 7:629 paragraph 3 of the Dutch Civil Code applies. The court ruled that a wage stop because the employee did not provide information about their side jobs is not a valid reason for a wage stop.
The court ruled that the reasonable instructions in the law refer to instructions aimed at enabling an employee to perform suitable work, such as taking a course to become suitable for suitable work. It is too broad an interpretation of the article to include information about side jobs. The court additionally ruled that wage suspension might have been possible in this situation, but the employer did not follow that route.
Regarding the employer's claim of hindering or delaying recovery, the court ruled that there was no evidence that the employee continued to work during their illness.
Therefore, the employer must still pay the employee's wages, including statutory increase and statutory interest.
The employer's claim to offset the salary with the sickness benefit the employee receives was also rejected: the sickness benefit is received under a different employment contract, so offsetting is not possible.
A wrong choice in wage suspension or wage stop can be costly for an employer. Are you unsure about the right steps to take with an employee who does not seem to cooperate with reintegration? Feel free to contact Laura Gringhuis or one of our other specialists within the Employment, Employee Participation & Mediation team!
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