Not working, still pay
In principle, an employee who is not working is not entitled to wages unless he is sick. Then the obligation to continue to pay wages during illness applies and the employee still receives wages while not working. Another exception is situational disability: although the employee is not medically sick, in some cases he is still entitled to wages. Often there is then a labor dispute. However, the rules for pay for situational disability will soon be changed.
In situational disability, an employee has called in sick but is not medically ill. The employee in question is unable to work due to working conditions - physically or mentally, but not because of illness. In most cases, situational disability is due to a labor dispute with the employer or with (one of the) colleagues.
For now, the entry into force of the Work and Social Security Act (hereafter WWZ) on July 1, 2015 has not changed the rules for the continuation of salary payment in case of situational disability. However, an amendment to the current provisions is in the pipeline, which will probably result in a different entitlement to salary in the event of situational disability in the future.
The intention is to change the current article of law with the adage 'no work, no pay, unless' (Section 7:627 of the Civil Code) into a new article of law, with a new motto: 'no work, but pay, unless'. Actually, this change was supposed to take effect as early as April 1, 2016, but in the meantime the entry into force of the new article has been repeatedly postponed. Briefly put, under the new article, the employer will be obliged to continue paying the wages of the employee who is not medically sick even if the employee does not perform the work, unless this risk (not performing the work) should be borne by the employee.
According to the legislator, with the intended amendment, the existing case law on continued payment of wages in case of situational disability remains in force. It is explicitly not the legislator's intention to change the current situation. Nevertheless, in practice this could turn out differently. For example, the change will have important consequences for the burden of proof. This will be addressed later in this article. First, we will discuss exactly what situational disability is.
Situational disability is a term often used, including by employees. But when is situational disability? That is difficult to determine.
In most cases, situational disability occurs when the employee who calls in sick is involved in a labor dispute. He is then not unfit for work because of an illness, but can no longer cope with the work because of the poisoned situation at work.
Case law has developed the following criteria, based on which it can be determined whether situational disability exists:
- there is a disrupted employment relationship;
- the employee considers himself unable to perform his work due to psychological or physical complaints;
- no medical restrictions on incapacity for work can be established, so there is incapacity for work due to "real" illness.
Parts B and C are determined by the judge partly on the basis of the advice of the company doctor or labor expert. In principle, an employee who does not experience a labor conflict himself will not be considered situationally unfit for work.
Under current legislation, an employee who does not work is not entitled to wages. There are two exceptions to this rule:
- the employee does have the right to wages if the employee is disabled due to illness, pregnancy or childbirth.
- the employee is entitled to wages if he does not work due to a cause that should reasonably be borne by the employer.
If there is situational disability, must the employer pay wages? According to the Supreme Court, in the case of situational disability, an employee is entitled to wages when :
- the employee cannot reasonably be required to resume work;
- it is so because of a cause that should reasonably be at the employer's risk, and;
- the employee cooperates fully with efforts designed to eliminate the absenteeism.
This means that if an employee does not cooperate sufficiently in eliminating the absence - for example, because he does not want to cooperate in mediation - the incapacity for work is at the employee's risk. He is then not entitled to wages in the first instance. Under the current rules, it is the employee who must prove that he was willing to perform the stipulated work and that the cause for his failure to do so must be borne by the employer.
As a result of the WWZ, the new article of law will provide that the employee who does not work is entitled to wages, unless the failure to work should be at his risk. Thus, the roles will be reversed. According to the government, no substantive change is intended with the new article. But is this true in practice?
With situational disability, in most cases both parties are to blame. After all, there is a labor dispute. The employer is only not obliged to pay wages if situational disability is exclusively or primarily the fault of the employee. Therefore, if both parties are to blame for the labor conflict, the employer is in principle obliged to continue paying wages to the employee. Even though the legislative history states that the amendment will not lead to a substantial change, it seems obvious that a change is in order. Compared to the current situation, in the event of situational disability, the employer will soon be obliged to pay wages sooner.
In addition, the burden of proof will in principle lie with the employer, whereas it currently still lies with the employee. In other words, the employer must argue that there is an exception to the main rule and must demonstrate why the employee is not entitled to wages in this case of situational disability.
Whether the intended change will be implemented is unclear at this time. In any case, the change will mean that, in principle, the employee will be entitled to continued payment of salary for the period of situational disability. Should the failure to work be for the employee's account and risk, it will be up to the employer to assert and, if necessary, prove this.
If you suspect that when you report sick there is a labor conflict and thus situational disability, it is wise to call in the company doctor as soon as possible. Moreover, make sure that your employer takes the initiative to normalize relations with the employee. The employee will have to comply with the employer's reasonable requests to resolve the conflict. If a company doctor is not clear or consistent in his advice, ask the company doctor for an explanation and ask him to make the advice concrete.
The employee must also follow the company doctor's advice. If an employee does not want to comply with the employer's advice or reasonable requests, point out this obligation and the consequences of not cooperating. It is important that you put everything in writing so that at a later stage - during any proceedings - you can prove that the cause for not working should be the employee's responsibility and risk. Even though under current law the burden of proof lies with the employee, this may change in the future. Moreover, the employer always has a duty of care for its employees and the responsibility to do everything in its power to eliminate the cause of a labor dispute.
How do you know if there is a labor dispute?
Typically, situational disability only exists when an employee calls in sick because of a labor dispute. However, the employee does not have to report the reason for calling in sick. So the question is how do you find out that there is a labor conflict (and thus situational disability)?
You can ask the employee's supervisor if he knows whether or not there is a labor conflict. However, keep in mind that the employee may have a conflict precisely with the supervisor and thus the supervisor may not want to say anything about it. You should always report a suspected labor conflict to the company doctor.
If you cannot put your finger on it, you will have to wait until the company doctor calls the employee for a consultation. He will then basically ask the employee if there is a conflict at work. The employee will have to answer that question truthfully. If it appears that there is a labor conflict, then the company doctor will recommend that the labor conflict be resolved (often through mediation).