In principle, until 1 January 2020, the employer was not required to pay wages if the employee had not performed any work. It was then up to the employee to demonstrate that they were entitled to wages. The new main rule is: no work, yet wages, unless the non-performance of work is for the expense and at the risk of the employee. An interesting practical question: should an employer continue paying wages to an employee who has been placed on inactive duty? The subdistrict court recently commented on this.
The employee in question had gone through a process to improve his functioning. After completing this process, the employer informed the employee that they no longer had any confidence in him. The employer proposed to terminate the collaboration. The employee was then released from work with pay. The employee and employer subsequently discussed termination of the employment contract, but this did not lead to any result. The employee asked the employer to provide a clear explanation for the reason for terminating the employment contract and for placing him on inactive duty.
The employer then suggested an interview. The employee declined this call and again asked for an adequate response. A day later, the employer stopped paying the employee wages. The reason for this was that the employee had refused to start the conversation.
Room for deviation
After the payment of wages stopped, the employee went to court and demanded payment of his salary. According to the employee, it was at the expense and risk of the employer that the employee had lost work. The employee stated that he had been wrongfully suspended and that the employer had not responded to repeated requests for explanations about the alleged malfunctioning.
The employer, in turn, believed that the non-payment of wages was justified because, despite calls and warnings, the employee had refused to enter into a conversation. According to the employer, this refusal meant that it should be for the employee’s account that no work was performed.
The judge first established that there may be room to deviate from the main rule “no work, yet wages”.
In addition, the judge agreed with the employer that an employee – even during inactivity – can reasonably be expected to enter into a conversation with the employer in order to resolve the work conflict. On the other hand, it was understandable that the employee first wanted clarification about the reason for the suspension.
Given that it was the employer who had suspended the employee, the judge ruled that the inactivity should be for the account of the employer. Although both parties could be blamed, the employer could not evade his obligation to pay wages in this case.
Paying wages remains the starting point for inactivity
A suspension appears to be in the employer’s risk sphere, and is therefore reasonably for their account. In principle, the employee retains the right to wages during a suspension or inactivity. The above statement shows that continued payment of wages can also apply if the employer has good reasons to put the employee on idle and this inactivity is due to the employee. The starting point is “right to work”. The employer cannot simply withdraw from continued payment of wages, even if the employee’s behaviour provides grounds for suspension.
Therefore, only suspend an employee if serious reason exists and if the employee’s return would lead to an unworkable situation. Placing employees on inactive duty should be done with caution. After all, in principle the employer will have to continue to pay the salary of the suspended employee regardless.
However, the law leaves room for deviation from this principle. If the grounds for inactive duty must reasonably be borne by the employee (for example in the event of theft), the employer is not (or no longer) obliged to continue paying the wages. Whether an employer is allowed to stop paying a suspended employee will have to be assessed on a case-by-case basis.
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District Court of North Holland May 27, 2020, ECLI (abbreviated): 4182
This article originally appeared in Rendement.