That employers must call in the support of the company doctor after an employee has been reported ill, is something you will be aware of. But have you also considered that the company doctor also has a role in preventing incapacity for work due to illness? The court in The Hague recently paid attention to this issue. We are pleased to share this judgment with you.

The facts

The employer has an employment conflict with two employees. After various complications, they report sick and both employees visit the company doctor. The doctor gives the following feedback:

“ Conclusion on work disability due to illness
In the strict sense of the word, there is no incapacity for work as a result of illness or disability. However, the person concerned is experiencing real symptoms, which, in my opinion, have their origin in work-related problems experienced over a long period of time. In my opinion, resuming work cannot simply take place from a medical preventative point of view, without resolving the problems experienced by the employee.
Advice (including resumption of work)
Work-related problems should be solved where they have arisen, namely at work. Discuss and find a solution for the disturbed working relationship. Mr. [employee 1] [respectively Mr. [employee 2] ; addition court] indicates to be open to discussions. I recommend the deployment and guidance of a mediator (...).
Because of the actual complaints experienced at this time, and from a preventative point of view, I consider it wise to start mediation from week 4 (and therefore not immediately).
Continuation
As of now, a recovery report may be filed. If sick leave is not terminated, the WvP must continue to be followed. (...)

Subsequently, on 10 February 2020, employees communicate that they would like to cooperate with the company doctor's advice to start mediation. The employees also claimed continued payment of their salary. The employer, however, did not see the point and informed the employees that their salary would be suspended for the time that they did not appear at work, as they were not ill.

The employer also indicated that it would cooperate in mediation, provided the employees themselves would bear the costs. The employer itself does not consider the mediation necessary; according to the employer, normal cooperation is possible if employees stick to the rules that apply within a company and if they follow the instructions of the director correctly.

On 24 February 2020, the employer sent a letter to both employees, stating that if they did not appear at work by 27 February 2020, they would be dismissed with immediate effect. This immediate dismissal followed by a letter on 28 February 2020, on the basis of 'refusal to work'. The employer also claimed fixed compensation from both employees.

The employees went to the subdistrict court and applied for a declaratory ruling that the instant dismissal was not legally valid. They claimed compensation for unfair dismissal, transitional allowance and equitable remuneration. In addition, the employees requested payment of overdue wages.

In first instance, the subdistrict court ruled that both instant dismissals were not legally valid. Fixed compensations, transitional allowance, equitable relief, back pay, etc. were awarded to the employees.

Assessment by the court of appeal

You guessed it: the employer is not satisfied and lodges an appeal. The employer requested that the decisions of the Subdistrict Court be set aside and that the employer's requests be granted. However, the employer's appeal was also unsuccessful, as the Court of Appeal ruled that:

“even if there is no (longer) incapacity for work due to illness or another medical cause, the company doctor is pre-eminently qualified, from a medical point of view, to advise on a solution to normalise working conditions so that the employee can resume his duties". [Employee 1] and employee 2] could reasonably rely on this advice - a conversation under the guidance of a mediator - and they could therefore not be expected to resume their work without such a conversation under the guidance of a mediator.”

According to the court of appeal, the fact that the company doctor did not speak with the employer prior to his advice, does not make this advice unsound, let alone that the employees' attitude towards the employer should not be guided by the company doctor's advice.

According to the court of appeal, it would have been up to the employer to request an expert opinion from the UWV, if he did not agree with the advice given by the company doctor. But the employer did not do so. The employer also failed to substantiate sufficiently that it could not pay the costs of mediation. The court of appeal found that the employer should have been expected to bear these costs, which is usual in an employer-employee relationship.

You can read the full judgment here.

In short: the preventive role of the company doctor should not be underestimated either! Employers will also have to follow such preventive advice. In case of doubt, consult an employment lawyer in time. SPEE advocaten & mediation will be happy to assist you.