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Jan Dop, LL.M.
Russell Advocaten, B.V.
Amsterdam, Netherlands

What can you, as an employer, do if it turns out that an employee on sick leave does not seem to be that sick after all? Can you stop paying wages? Re-claim wages paid in excess? Terminate the employment contract? Dismiss the person in question?

Sick leave is a costly affair for employers. The wages of sick employees must be continued to be paid, time and effort has to be put on re-integration, and in some cases a substitute has to be arranged. Then, it is even more annoying when it becomes obvious from social media that the employee is not (so) sick after all, but can be found partying at a festival or on holiday on a golden beach. What can you, as an employer do in such cases?

Bring in the Health and Safety Agency or Company Doctor

As an employer, you are not allowed to assess yourself whether your employee is sick or not. This must be done by the health and safety agency or a company doctor. Therefore, the health and safety agency and company doctor have to be notified as soon as possible about the suspicion that that the employee is not sick at all. The health and safety agency or company doctor will then call the employee for an appointment to assess whether the employee really is sick.

Sanctions

If it turns out that the employer has indeed unjustly called in sick, you are not obliged to pay wages for the period of time. The employee might have to pay back the wages that were possibly paid in excess.

As an employer, you can also stop paying wages if it turns out that the employee impedes or delays recovery, for instance by taking part in the activities of which he posts photos on Facebook. Then, it will be crucial that it is established that the activities really impede or delay the employee’s recovery.

This will not likely be the case if an employee with a burnout posts on Facebook that he or she had been on a night out with friends. The employer must inform the employee in advance that payment of wages will be stopped so that the employee can respond to it.

If a wrongful sick leave has damaged the trust in the employee, a request to terminate the employment contract can be submitted at the sub-district court. Chances whether the request for termination will be successful, depend on all facts and circumstances, including the length of the employment, whether the employee has previously taken wrongful sick leave and other functioning of the employee. In exceptional cases, dismissal on the spot might also be a permitted sanction for an employee who wrongly reported sick.

Before you start imposing sanctions on the employee, it is advisable to get legal advice. Should it turn out that the sanction was unjustly imposed, long-lasting proceedings and high costs might be the consequences for the employer.

More Information

Are you in doubt whether your employee is actually sick? Would you like advice on how to deal with sickness absence of your employees? Please contact us.