Company doctor and illness in the event of a recovery notification settlement agreement
Our employment and dismissal law attorney in Amsterdam provides legal advice on recovery notification settlement agreements. A settlement agreement only entitles the employee to unemployment benefits if they are healthy at the time of signing and remain so until after the end date. If the employee leaves the company on sick leave with a VSO, the UWV will not provide any benefits. The only exception to this is if the employee reports that they have recovered or are feeling better before the end date.
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The risk of leaving employment while ill with a settlement agreement lies with the employee
This also means that the risk of leaving employment while ill with a termination agreement lies entirely with the employee. This is also the case if the employee has not engaged a lawyer in the event of dismissal by mutual consent.
In order to accommodate the employee, the employer will therefore often refer the employee to a lawyer to discuss the recovery notification. What happens if an employee is not allowed to engage a lawyer when negotiating a settlement agreement in the event of illness? In that case, the employer may be blamed if things go wrong.
Legal advice from a lawyer before the employee agrees to a settlement agreement for a return-to-work notification
In such a case, the court of appeal ruled that an employer is at fault if they do not advise the employee to consult a lawyer or legal expert in the event of illness and a settlement agreement. This must be done before the employee agrees to a settlement agreement for a return-to-work notification.
Mediation and incapacity for work
The following often happens with a recovery notification settlement agreement: mediation fails. The employer stops paying wages because the employee does not resume work before agreeing to a recovery notification settlement agreement.
Recovery notification settlement agreement
The company doctor then advises proceeding with:
- recovery notification settlement agreement
- and legal termination of the employment relationship.
Recovery notification without settlement agreement
Recovery notification settlement agreement: the employee eventually reports that he is better (recovered), but he does not accept a termination agreement. The employer then summons him to appear at work. The employee does not appear, claiming illness. The employee is then summarily dismissed for refusing to work, despite his illness. The employee’s lawyer then orders the employer to continue paying wages. This leads to proceedings before the subdistrict court and subsequently the court of appeal.
Employer should have referred employee to a labor law lawyer
The court of appeal gives the employer a slap on the wrist. After the mediation failed, the employer did not take the correct legal route. The employer should have advised the employee—or his counselor—to consult an expert in labor law. This lawyer could have consulted with (a lawyer from) the employer to investigate whether termination of the employment contract was possible without adversely affecting the employee’s entitlement to benefits (under the Sickness Benefits Act and the Unemployment Insurance Act).
The court did not get the impression that the employer could expect the employee to be able to represent his own interests in a settlement agreement in the event of a recovery report.
Legal advice for the recovery notification in a settlement agreement
According to the court, the employer should first have investigated with the employee whether termination of the employment contract with a recovery notification settlement agreement was possible before the employer could call the employee back to work. According to the court, the suspension of wages was unjustified. However, the court also found that the employee could have been expected to seek advice on his legal position upon receiving a settlement agreement.
Conclusion on reinstatement notification in settlement agreement
The conclusion of this ruling is:
- that an employer must seriously discuss a settlement agreement with an employee if the company doctor advises this
- that an employer must advise the employee to seek legal advice about a recovery report when signing a settlement agreement in the event of illness
- that an employee also has a responsibility to discuss the recovery report with a lawyer.
Doctor assessments and recovery notifications
The doctor’s advice to resolve the matter by parting ways must be carried out with care. This is especially important because the benefit entitlements of the (sick) employee are at stake. In order to obtain unemployment benefits for the employee, an employer often asks the employee to report that they have recovered before leaving employment. In this case, however, the employee had already done so before a settlement agreement regarding the recovery report had been agreed upon.
The court now criticizes the employer for not advising the employee to consult a lawyer at the time. Only after a legal investigation had determined whether termination of the employment contract was possible could the employer have called the employee back to work.
Both the employer and the employee therefore run a risk if a sick employee does not obtain legal assistance from a lawyer when terminating the employment contract during incapacity for work.
Advice from a lawyer on a recovery notification settlement agreement in Amsterdam
Therefore, please contact our specialized lawyer in Amsterdam specializing in dismissal law if you want to have a recovery notification settlement agreement checked legally.