20 Jan 2021 Wage freeze due to employee refusal to come to work, is that allowed?
As everyone knows by now, the norm in the current corona times is that employees must work at home as much as possible. If, for whatever reason, this is not possible, the employer must provide sufficient protective measures and a safe workplace. In this case, which was brought before the Subdistrict Court of Maastricht, the employer was of the opinion that there was a question of refusal to work, because the employee refused to come to the workplace. For this reason, the employer stopped payment of salary. Is that allowed?
The employee had been employed by the employer as a secretary since 14 March 2011. On 15 March 2020, the employer sent the employee an e-mail in which it informed her that, despite the consequences of COVID-19, she was not allowed to work at home. If employees do want to work from home, the employer states that they can do so in exchange for surrendering leave days. On 16 March 2020, the employee reported sick due to a throat complaint. On 4 May 2020, the claimant was declared unfit for work. As of 1 June 2020, the employer stopped paying the salary of the employee. In summary proceedings the employee claimed to order the employer to pay the salary arrears.
The Subdistrict Court ruled that from the very beginning the employee had made it clear that she wanted to work at the workplace if it was safe. Contrary to the employer's assertion, it is evident from the documents and the statements made at the hearing that the employer did not provide a safe workplace. Nor did the employer inform the employee that her workplace was safe. She was only informed of this on 19 August 2020 by the employer's authorised representative. Therefore, it cannot be held against the employee that she did not want to appear at the workplace. Nor did the employer offer the employee any other work which she could perform from home, or modify her work so that it could be performed from home. The employee did make such suggestions.
The fact that the employee was not prepared to have a physical conversation with the employer does not constitute a refusal to work either. Employee was open to a conversation if it took place in a safe manner or by means of video conferencing, but employer was not prepared to do so. It is further established that the employee declared herself willing to work and stated that she would pay for the adjustments to her workplace herself. Finally, the labour expert report of the UWV shows that the reintegration efforts of the employer are insufficient and the wage measures were not announced in writing. The employer was not entitled to stop the payment of salary to the employee. The claims of the employee are therefore awarded.
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