20 May 2021
In some cases, in addition to the transitional payment, an employee who has been dismissed can also demand fair compensation.
Such a compensation requires that the employer has acted seriously culpably during or with regard to the dismissal. Consider the situation in which the employer deliberately causes and directs a disrupted employment relationship at the end of the employment contract.
Case law shows that fair compensation is often demanded by employees, but only granted in exceptional cases.
In a recent case, the court ruled that the employer had gone too far. The serious culpability of the employer in this case concerned non-compliance with the reintegration obligation towards a sick employee. The employee had worked for the employer since 1992. After applying for a senior management position in 2014, her supervisor began exhibiting intimidating behaviour. The supervisor’s harassment eventually led to the employee calling in sick in 2016. Shortly afterwards, the employee even tried to commit suicide. A reintegration process began in the subsequent period. After another suicide attempt at the beginning of 2018, the employee dropped out completely again. In 2019, the UWV (Employee Insurance Agency) gave the employer permission to terminate the employment contract due to an employee’s long-term illness.
The employee instituted proceedings for this. She argued that the employer had behaved in a seriously culpable manner. As a result, she was unable to reintegrate and the employment contract ended due to long-term incapacity for work. The employer had not followed the advice of the company doctor to have someone other than the supervisor maintain contact with the employee. This had made reintegration more difficult. In addition, the supervisor did not want to cooperate in mediation, while the employee had indicated that she could not resolve the conflict with her supervisor on her own. Moreover, in the third year of illness, the employer made little effort to make reintegration possible. The employee therefore requested fair compensation of € 755,488.- nett.
The court agreed with the employee’s statements. According to the court, reintegration would have been possible if the employer had acted adequately. In that case, termination of the employment contract would not have been necessary. According to the court, it was established that the employer had failed to fulfil their reintegration obligations towards the employee. In determining the fair compensation, the court took into account the employee’s loss of income, the missed opportunity for career development and compensation for psychological distress. The employee was granted fair compensation of € 200,000.- gross.
In the event of illness, both the employee and the employer have reintegration obligations. Failure to comply with this can be costly for the employer, as is apparent from the above-discussed judgment.
Failure to meet the reintegration obligations can therefore achieve the high bar of serious culpability and entitle the employee to fair compensation. For this reason – in addition to the human aspect – it is therefore advisable to take the reintegration of a sick employee seriously. This starts with following the advice of the company doctor and the insurance doctor of the UWV.
When the illness is related to a conflict situation at work, extra alertness is in order. It is then important to have contact with the sick employee take place as much as possible by an employee who is outside the conflict.
In this way, the reintegration is not unnecessarily frustrated. In that case, you cannot be blamed for any termination of the employment contract due to the employee’s long-term incapacity for work.
Do you have a question? Please do not hesitate to contact me.
‘S-Hertogenbosch Court of Appeal January 28, 2021, ECLI (abbreviated): 239
This article was previously published in Rendement.
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