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Suitable employment can become contracted employment!

11/05/2011

An employee's occupational disability creates reintegration obligations for both employer and employee. The employer is required to find suitable employment for an employee who is unable to perform his duties (the contracted employment). Suitable employment however can under certain circumstances become contracted employment, with all its associated (financial) consequences.

Suitable employment
An employee receiving disability benefits can, in the context of his reintegration, perform duties other than his own; in other words, suitable employment. If the employee again reports sick during this suitable employment period, this does not create a new obligation to continue to pay wages for a period of 104 weeks for the employer. The employee is still receiving disability benefits after all. However, where suitable employment becomes contracted employment, this does create a new obligation to continue to pay wages for the employer.

Sometimes it is not clear whether suitable employment has become contracted employment. Where employer and employee achieve explicit agreement that the suitable employment has become contracted employment, there will be no uncertainty. There will however be discussion if the situation involves a tacit change. When can an employee be sure that suitable employment has become contracted employment?
The Dutch courts have ruled on this issue in several recent judgements.

Suitable employment becomes contracted employment
In a recent judgement by the Utrecht Sub-District Court an employment expert recommended that the workplace of a female employee receiving disability benefits since 2006 be modified and that she be relieved from some of her duties. Parties adhered to this recommendation and employee was reintegrated in a modified role as from December 2008. In February 2010, the employee reports sick again. The employer ceases the continued payment of wages. The employer alleges that suitable employment did not become contracted employment.

The Sub-District Court awards employee's claim to recover wages. The Sub-District Court holds that there is no evidence of parties making efforts to replace the duties which employee was deemed not fit to perform in 2008.
The employer argued that suitable employment did not become contracted employment, as employee was relieved of only 7.5% of her original duties. This is such a minor modification that it cannot create a situation of contracted employment.
The Sub-District Court did not accept this defence. Since parties in consultation with the employment expert made arrangement to modify the duties, it is irrelevant to which degree the duties were modified.
As employee performed the modified duties for 15 months and the nature and scope thereof had not been reason for discussion between parties, the requirements for entitlement to continued payment of wages had been satisfied. The suitable employment became contracted employment. The Sub-District Court awarded the action to recover wages, creating for the employer a new obligation to continue to pay wages for a period of 104 weeks.

Suitable employment does not become contracted employment
Another Utrecht Sub-District Court judgement concerned a female employee who had been hired in the role of customer service employee. She then became a Sales Support employee. Having started receiving disability benefits, she reintegrated in the role of customer service employee. At some point she was declared fit for duty. The employment expert opposed this decision, as the employee had simply resumed the duties of her former role and not those of her contracted employment. The Sub-District Court ruled that the bare fact that the employer reported employee fit for duty and was for a period of time under the impression that the employee was fit for duty does not create a situation where suitable employment becomes new contracted employment.

Conclusion
When the employee performs suitable employment for a period of time and employer makes no efforts to ensure reintegration of employee in his original role, suitable employment may have become contracted employment. The bare fact that an employee has been declared fit for duty is insufficient ground to presume that suitable employment has become contracted employment.
If an employer wants to avoid suitable employment becoming contracted employment, then it will need to consistently put energy into the employee's reintegration program. It is therefore essential for the employer to continue communicating to the employee that the relevant efforts are consistently aimed at ensuring a return to the original role. If the employer stops putting energy into the reintegration program then there is a risk that suitable employment has become contracted employment, creating a new obligation to continue to pay wages for a period of 104 weeks.

Authors

Picture of Madeleine Lamers
Madeleine Lamers
Counsel
Amsterdam