An employer summarily dismissed an employee after it emerged that, while she was unfit for work, she was employed elsewhere as a masseuse. The employer found this unacceptable: in his view, it was incompatible with her incapacity for work and her full-time employment. The case was heard in two courts. What was the Court of Appeal's ruling?

No absolute ban on secondary employment during illness

The Court emphasises that, in principle, an employer cannot prohibit an employee from performing work elsewhere outside their own work schedule. Only when there are objective grounds for a restriction, for example for health or safety reasons, can such a prohibition be justified. In this case, that was not the case. The mere fact that the employee was still on sick leave did not automatically mean that she was not allowed to do anything elsewhere.

Obligation to report to the company doctor

According to the Court, the employee should have reported to the company doctor that she had a second job. The company doctor could then have assessed whether this work was hindering her recovery or reintegration. The employee failed to do so, which is reprehensible, but insufficient to justify summary dismissal.

No evidence of a link between recovery and secondary employment

According to the Court, the employer was unable to demonstrate that there was in fact a link between the employee's (in his opinion) slow recovery and her work for the other employer. This meant that there was no urgent reason, which is required for a lawful summary dismissal. Termination of the employment contract on the grounds of a permanently disrupted working relationship would have been possible in this case, but this was not at issue here because the employer opted for summary dismissal.

Importance of the judgment for legal practice

This ruling once again makes it clear that summary dismissal on the grounds of secondary employment during illness is only upheld in exceptional cases. An employer will have to demonstrate specifically that the secondary employment hinders recovery or is otherwise contrary to reintegration obligations. Employees must always be open with the company doctor about any other work they are doing, precisely in order to avoid misunderstandings or accusations.

ECLI:NL:RBDHA:2024:21917, Rechtbank Den Haag, 11189612 RP VERZ 24-50398

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