In certain situations you can expect an employee to accept a change in their place of employment. In such cases it is especially important that your proposal is reasonable. In a recent judgement, the travel distance was central.
What was the situation?
The employee had been employed by the employer since 2005 as a technician. The employee became ill on 10 June 2014. Two years later, after 10 June 2016, the employer was no longer obliged to continue paying the employee’s salary. As of that date, the employee could claim a sickness benefit. However, neither of the parties had terminated the employment contract, so it continued.
In October 2018, the employee indicated that he was 100% fit for work and wanted to return to work for the employer on 19 November 2018. He then demanded payment of wages as of that date. However, the employer was unable to comply with these requests. The location where the employee previously performed his duties had been closed. There were also no alternative activities that the employee could perform for the employer.
The court therefore ruled that the employee could not return to his previous position. Then the question remained whether the employer was obliged to again pay wages, now that the employee was fully fit for work and wanted to start working again.
The employer had already made a proposal before the start of the procedure: on 19 November 2018 the employee would be able to start working again on the basis of a secondment agreement with a similar organisation to that of the employer. The terms and conditions of employment remained unchanged and the travel expenses were reimbursed. However, the employee did not accept this proposal as it would add 35 minutes to both the outward and return journey times.
The judge had to determine whether the employee could reject this proposal. The Supreme Court has ruled that a judge must assess three elements in such a case:
1. Are there changed circumstances as a result of which the employment contract must change?
2. Has the employer made a reasonable proposal in view of the specific circumstances of the case?
3. Can the employee reasonably be expected to accept the proposal?
The court ruled that the employer’s proposal was not reasonable. In view of the specific family situation (the court did not specify further), the employee could not be expected to agree. Because the employee was not working at the risk of the employer, the court ruled that from 19 November 2018 the employer had to pay the employee wages.
During the proceedings the employer changed his proposal: the travel time would fall under working time. The court found this amended proposal reasonable. The employee was given a one-week reflection period to accept the amended proposal. If he rejected the amended proposal, the employer would then no longer obliged to pay the salary from one week after the decision.
This article was previously published in Rendement.
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