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12 Mar 2024 Does the occasional payment of 100% wages during illness lead to established practice?

In a recent decision of the Rotterdam subdistrict court, the judge had to address the question whether an employee is entitled to 100% continued payment of wages during illness, instead of the statutory 70% payment of wages, to which the employee is entitled on the basis of the law. She bases her position on what she sees as an established practice within the employer's company, where, in her view, employees usually receive 100% wage payment during the first year of illness. She also refers to an earlier short period of illness during which she herself also received 100% wage payment. How did the court rule?

Facts

On 1 September 1 2021, employer and employee entered into an employment contract for the duration of eight months. Subsequently, on 30 April 30 2022, the parties entered into a second employment contract, which included 31 December 2023 as the end date.

Subsequently, a third fixed-term employment contract was signed.

There is dispute between the parties as to when which fixed-term employment contract ended ( and when the successive employment contract began).

Moreover, the employee took the position that she was entitled to continued payment of 100% of her salary as of February 2023, instead of 70% salary, which she was paid pursuant to Section 7:629 of the Dutch Civil Code. To this end, she argued that it is customary within the employer's company that employees are paid their wages in full during the first year of illness and that the employer has a duty to treat the employee equally. In addition, the employee argued that she had also continued to receive 100% of her salary during a previous (short) period of illness.

How does the court rule?

The court ruled that an obligation to supplement the continued payment of wages up to 100%, in the absence of (written) agreements on this between employer and employee, can still exist if this is an established practice within the company concerned.

However, the court stated that there was no evidence that this was the case within employer's company.

Employee also failed to adequately substantiate her claims on that point, according to the court.

The fact that an employer does continue to pay its employees' wages at 100% in the event of occasional and short-term periods of illness is (as employer argued at the hearing) due to practical accounting considerations and does not detract from the policy within employer's company that, in the event of long-term illness, 70% is paid.

Read the ruling here.

Conclusion

In short: the occasional payment of 100% of the salary during a (short) period of illness does not lead to an established practice. However, employers should be aware that their actions may create certain expectations of employees. A friendly gesture in this regard, for example, may lead to a justified trust on the part of employees regarding the percentage of salary payment during illness in the future. An employer would therefore be well advised to pursue a strict and consistent policy regarding continued payment of salary during illness and preferably also to make clear agreements about this in the employment contract.

Would you like to learn more about this ruling or about (the pitfalls of) continued payment of wages during illness and/or the drafting or screening of new or existing employment contracts? The employment lawyers at SPEE advocaten & mediation will be happy to assist you.

SPEE advocaten & mediation Maastricht

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