23 July 2025
Employers often perceive sickness notifications and absenteeism as a significant burden. This is understandable. Employees on sick leave would also prefer to be at work rather than at home unable to work.
In practice, these feelings sometimes lead to situations I describe as “playing doctor”. An employer may decide not to accept or trust a report of illness, while the employee on sick leave believes they are fit to take on work elsewhere. What does employment law say about this, and what can an employer do?
A sickness report is a unilateral notification by the employee. Especially if it is yet another Monday morning absence, it is understandable that the employer may be sceptical. However, from an employment law perspective, the employer has limited room for manoeuvre. Saying “I do not accept your sickness report” changes nothing legally: the employee is considered sick and entitled to continued payment of wages. Requesting a statement from the employee’s GP is also unhelpful.
GPs are not allowed to issue medical fitness statements about their patients’ ability to work. This follows from KNMG guidelines. Therefore, an employee cannot obtain such a statement, nor may an employer possess or process such medical data, as it qualifies as special category personal data under the GDPR. Similarly, an employee cannot rely on a GP’s statement when the occupational health physician deems them fit to work. In such cases, the employee must resume work or reintegrate, regardless of the GP’s opinion. If they fail to comply, the employer may impose a wage sanction. Employers must ensure they apply the correct type of sanction: either suspension or discontinuation of wages. Read here more: Suspension of salary or discontinuation of salary
Only the occupational health physician is authorised to assess whether an employee is unfit for work. This responsibility does not lie with the employer or the GP. After a sickness report, it is reasonable for the employer to contact the employee to ask about the expected duration of the absence. Such contact also shows involvement. However, employers are not permitted to ask about the nature of the medical condition. The occupational health physician remains the central point of contact in the initial phase.
Occasionally, an employer who doubts an employee’s sickness report and fails to consult the occupational health physician may opt for immediate dismissal. Jurisprudence shows that this is rarely a good idea. In such cases, the burden of proof lies with the employer to demonstrate that the employee was not genuinely ill, which is often impossible. A recent case before the Subdistrict Court of Nijmegen in early 2025 illustrates this. The judge ruled that the employer, who doubted the sickness report, should have involved the occupational health physician rather than proceed with immediate dismissal. There was no case of refusal to work. As a result, the employer was ordered to pay various compensation amounts, which could have been avoided.
A different situation arises when an employee, despite confirmed limitations by the occupational health physician, undertakes work elsewhere. For example, a driver employed by a transport company who is deemed completely unfit to work due to back problems, yet works as a delivery driver for another company. Or a warehouse employee declared unfit due to knee issues, whose name appears on the finish list of a local marathon.
In such cases, the employer must demonstrate that the side activities hinder recovery or reintegration or that the employee has provided incorrect information about their limitations. Running a marathon while officially off work due to knee problems clearly undermines the sick report. However, jogging or running as part of recovery from burnout may support reintegration. As always, immediate dismissal requires consideration of all relevant circumstances.
Immediate dismissal was recently upheld in a case where an employee on sick leave from employer A worked for employer B without notifying employer A, despite being contractually obliged to do so. Working both a 40 hour and a 16 hour job could violate working hours legislation. Employer A was therefore entitled to invoke the secondary employment clause. Although there was no clear evidence that the additional 16 hour job hindered recovery, the court ruled that the employee had breached her reintegration obligations by failing to inform the occupational health physician. (ECLI:NL:RBDHA:2024:21917, Rechtbank Den Haag, 11189612 RP VERZ 24-50398).
Ultimately, the dismissal was justified. Whether immediate dismissal is appropriate depends heavily on the specific facts and circumstances. In some cases, a wage sanction may be more appropriate. See also our previous blog on dismissal during suspected illness. In short, employees who “play doctor” by deciding they are fit to work elsewhere during sick leave risk wage penalties or dismissal. Likewise, employers who make medical assessments themselves without consulting a professional take legal risks. Always involve the occupational health physician. For questions or concerns, consult the employment lawyers at GMW.
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