The Arnhem-Leeuwarden Court of Appeal recently ruled on a case in which the employee had been dismissed for working elsewhere during his illness. What was the verdict of the subdistrict court and the court of appeal and why?

What was going on?

Since 1 December 2017, the employee has worked for 40 hours per week at ASN Autoschade, at a salary of € 2,275 gross, excluding holiday allowance. On the basis of both the employment contract and the collective labour agreement, the employee was prohibited from carrying out ancillary work without the employer's permission.

On 9 March 2020, the employee reported sick. From mid-March 2020, he tried to return to work. However, on 6 May 2020, the company doctor ruled that the employee had a marginal capacity and was not fit for work. He was said to be limited in his energy and this required further investigation. On 12 June 2020, according to the company doctor, there had been no change in the employee's medical situation.

Nevertheless, employee continued to work partly for ASN and from July 2020 he worked half days again. On 14 September 2020, the company doctor advised him to continue doing so, pending further investigation. A few days later, employee and employer made written agreements on working hours and the gradual extension of work. The following month, in October 2020, the employer issued an employer's statement to employee with a view to purchasing a home. It was also agreed that employee would return to full time work as of 12 October 2020.

However, things did not go well: on 19 October 2020, the employee e-mailed the company doctor about the abovementioned agreement and indicated that ASN would only be prepared to issue an employer’s statement, if a new 20-hour employment contract was concluded or if the employee would sign to return to full work. The employee wondered whether he would be able to work full time and asked the company doctor what the consequences would be if he could not do so.

It did not take long for things to go wrong, since on 27 October 2020, employee stopped working in the middle of the day due to fatigue symptoms. After this, employee started working half days again.

At the end of October, beginning of November 2020, ASN engaged the services of a private investigation firm because ASN had received indications that the employee was working (during sick leave) in the home of a colleague. The investigators subsequently carried out observations on nine days and it was established on three of the nine days that the employee's car was indeed parked at the home of his colleague. What the employee was actually doing there was not established.

The employer then entered into discussions with the employee and made a proposal to terminate the employment contract by mutual consent, but no settlement was reached.

At the end of December 2020, the company doctor established that employee's condition had not yet been remedied and that there was a labour dispute. As is often the case, the company doctor recommended mediation. According to the company doctor, reintegration could only take place once the conflict had been resolved. However, mediation was not tried and on 27 January 2021 ASN submitted a request to dissolve the employment agreement.

The court’s ruling

ASN's request for dissolution is based on serious culpability of the employee, or a disturbed working relationship, or a combination of both grounds.

The employee opposed to the dissolution and argued that if the subdistrict court were to dissolve the agreement after all, the employer should pay him a fair compensation of € 45,832 gross. The employer has allegedly put the employee under considerable pressure to get back to work. According to the employee, any disruption in the working relationship was due to serious culpability on the part of ASN.

The subdistrict court ruled that the relationship between the parties had been irreparably disrupted and that redeployment in a different position within the company was not an option. The employment contract was terminated on 1 May 2021 and the employee is entitled to transitional compensation of € 2,798.25 gross. The request to award fair remuneration was rejected.

The appeal procedure

The employee disagreed with the ruling of the subdistrict court and lodged an appeal with the Arnhem-Leeuwarden Court of Appeal. He requested reinstatement of the employment contract, payment of salary arrears or otherwise a fair remuneration of €45,823 gross.

The first question to be considered is whether the dissolution was in breach of the prohibition of termination during illness (and its reflex effect). According to the employee, ASN actually wanted to get rid of him because he was ill and ASN was not insured for absenteeism. ASN therefore urged the employee to return to work. According to the employee, this is why the prohibition on termination during illness applies. The court of appeal disagreed, stating that ASN wanted to dismiss the employee for working elsewhere during his illness. According to the court of appeal, it is 'conceivable and credible' that ASN had lost confidence in the employee due to the findings regarding the work elsewhere. This is therefore not a dismissal because of the illness itself. For this reason, the employee could not invoke the prohibition of termination during illness.

The court of appeal states that ASN did push the employee to work more than the company doctor thought he could. However, this does not mean that this was the employer's actual reason for requesting the dissolution.

Then the question: on what basis should the contract be dissolved? The court of appeal agrees with the subdistrict court that the disrupted employment relationship is the ground for dissolution of the employment contract. According to the court of appeal, the employment contract cannot be dissolved on the grounds of culpability of the employee, among other things, because the contractual prohibition on ancillary work was not absolute, the scope of the ancillary work was not fixed, and ASN had indeed pushed the employee to work more.

The court ruled that there was no serious culpability on the part of the employer. Hence, the employee was not entitled to receive a fair compensation. Interestingly, the court of appeal indicated that in this case the employer was free not to try mediation. If you would like to read all the facts and the opinion of the court of appeal, you can do so here.

Final Remarks

This case shows that situations involving illness and incapacity for work can give rise to discussions, especially if there are additional circumstances such as a ban on secondary work that has been exceeded. The rule for both employees and employers is: seek timely advice from an employment lawyer, this will prevent a lot of problems! SPEE advocaten & mediation will be happy to help you on your way.