The employer and employee are discussing whether or not salary ought to be paid to the employee during a certain period. The employer has the opinion (based on the opinion of the company doctor) that no salary should be paid, while the employee (based on the opinion of the UWV insurance doctor) argues that he is entitled to receive his salary. Curious to find out what the court thinks about this case?

Facts

Employee entered the employer's service for one year in 2014. The employment contract was subsequently extended for one year, until 1 December 2016. On 11 October 2016, the employee reported sick. On 27 October 2016, the employee attended a consultation with the occupational health and safety physician. According to the occupational health and safety physician, the employee had stress-related complaints that were connected to non-medical factors; she did not consider the employee to be unfit for work. The employee applied to the UWV for an expert opinion. On 23 November 2016, the UWV insurance doctor concluded that, as at the date of the dispute, the employee was not fit for work. It can be deduced from the patient file of the employee's general practitioner that from 29 September 2016 employee was treated by the practice support worker because of complaints of overstress/burnout. The parties disagree on the question whether the employee was unfit for work in the period from 11 October 2016 until the end of his employment.

The subdistrict court upheld the employee's claim for continued payment of salary during that period. However, the employer did not agree and lodged an appeal.

Judgment

Ranking of opinions

The court of appeal noted that it is an established fact that the employee was not seen by a company doctor (a specialist doctor), but by a occupational health and safety physician (a basic doctor), and that the occupational health and safety physician did not have any contact with the general practitioner (nor did she want to), while the UWV's insurance doctor had received a letter from the general practitioner dated 15 November 2016. Furthermore, the Court notes that the expert opinion is supported by the report and the patient file. The Court also sees no other contraindications against the expert opinion. This all means that in this case, the Court attaches more weight to the report of the UWV's insurance doctor than to that of the occupational health physician.

Occupational disability

The court of appeal, together with the subdistrict court and the employee, holds the opinion that it can be deduced from the consideration given by the UWV insurance doctor that this doctor also took into account the underlying psychological problems of the employee, in giving his opinion that the employee could not be considered suitable for his own work. Because the insurance doctor speaks of restrictions based on the pattern of symptoms, this consideration means that the insurance doctor also considered employee unfit for work also regardless of medication. All the more because the insurance doctor refers to a letter from the general practitioner and also the general practitioner file pays a lot of attention in the patient file to burn-out complaints, aggression, agitation and restlessness. Parties have a dispute about the date until which the employee had to take medication and whether or not it was allowed to drive a car with this medication. The court deduced from this that it was quite possible that the employee was still (occasionally) taking Oxazepam throughout November 2016 and that the driving ability required for his job was therefore definitely impaired.

Because the court of appeal interprets the report of the UWV insurance doctor as stating that he also saw the underlying psychological symptoms as restrictions for the employee in performing his own work, and as the court of appeal also sees support for this in the GP's patient file, no further investigation is required. The fact that the employee nevertheless drove a car and, according to his statement at the hearing before the Subdistrict Court, often drove a car, does not mean that the use of medication did not hinder his ability to work.

Taking all of the above into consideration, the court of appeal agreed with the Subdistrict Court that the employee was unfit for work. The appeal has failed. The contested judgment will be upheld.

Conclusion

It remains a tricky matter, how to deal with obligations in the context of an employee who is unfit for work. When to pay wages, and when not to? What needs to be done about reintegration and for how long? The employment lawywers at SPEE advocaten & mediation will be happy to advise you.