And if so, who determines whether he is unfit for work?

Sick leave can be frustrating for employers. An employee calls in sick, but the question is: are they really sick? And more importantly, who decides? Is it the employee themselves, their GP, the employer or the company doctor?

The main rule: only the company doctor is authorised

As a main rule, only a company doctor may determine whether an employee is unfit for work due to illness, provided that the employee is resident in the Netherlands.

An employee may, of course, report sick, but that is not a medical assessment. A general practitioner also has no formal role in this. Only a company doctor may determine whether there is illness in the sense of incapacity for work. In practice, we often see confusion and even discussion about this.

An employee who says: but my GP says that I have burnout. An employer who says: I don't think that's the case.

What does case law indicate?

Several recent court rulings have confirmed that only the company doctor is authorised to assess incapacity for work.

Below are four relevant judgements:

• ECLI:NL:RBZWB:2024:4521
• ECLI:NL:RBGEL:2024:615
• ECLI:NL:GHARL:2022:9231
• ECLI:NL:RBNHO:2021:4433

Role of the employer

The employer does not determine whether someone is ill, but may take action if an employee reports sick and, for example, does not cooperate with an investigation by the company doctor, or if he disagrees with the company doctor's assessment. Examples of this are: .

• Requesting an expert assessment from the UWV (if he disagrees with the company doctor's assessment)
• Suspending or stopping wages (if the employee does not cooperate with the company doctor's assessment of his incapacity for work).

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Conclusion

Neither the employee, the general practitioner nor the employer determines whether someone is unfit for work; this is reserved for the company doctor. It is therefore essential that employees cooperate with an assessment by the company doctor. Failure to do so may have consequences for their right to wages, among other things. Do you have questions about absenteeism, continued payment of wages or reintegration? The employment lawyers at SPEE advocaten & mediation advise employers and employees on these and other topics on a daily basis.