For employees who can no longer perform their current role, for example due to illness, suitable work must be found. But when is work suitable? This depends on the circumstances of the case. Various factors are taken into account when assessing whether work is suitable. If the employee — unlike their employer — does not consider the work suitable, they may refuse it. For employers who believe the work is suitable, various remedies remain available, such as a wage stop.
ECLI:NL:RBMNE:2024:6465
In the ruling mentioned above, dated 28 November 2024, a dispute between employer and employee centred on whether the offered reintegration work was suitable. The employee in question fell ill and, after some time, had to reintegrate. The company doctor advised against doing this at the original workplace. Following this advice, the employer chose a different location where the employee could reintegrate. Total travel time to this location amounted to 3.5 hours per day, of which half an hour was counted as reintegration working time. The employee considered this travel time unreasonable and, for that reason, found the offered work unsuitable. When the employee therefore did not show up, the employer imposed a wage stop for refusing suitable work.
The interim relief judge emphasised that, first and foremost, the company doctor’s assessment of the work is important. The employer argued that the company doctor considered the travel time for the work, with a reduction in working hours, suitable. According to the interim relief judge, however, this was not evident from the reports. In addition, there was a UWV expert opinion stating that, given the employee’s limitations, the workplace was potentially not suitable. Taking all circumstances into account, the interim relief judge ruled it had not been shown that the employee had refused suitable work, meaning the wage stop had been wrongly imposed. The employer was ordered to pay the outstanding wages, plus the statutory increase of 50% and the costs of the expert opinion.
What does this mean for employers?
This ruling underlines that the concept of suitable work depends heavily on the specific circumstances of the case. It offers employers various points of reference when assessing and offering work to reintegrating employees. The company doctor’s advice is leading, but not absolute. An expert opinion can, moreover, change the situation and serve as guidance in the discussion between employer and employee. An expert opinion not only offers an objective view of the situation, but can also prevent legal complications, such as a wage stop that later turns out to have been unjustified.
Employers should act carefully when offering suitable work and can, where desired, consult with the company doctor and, if necessary, the UWV. Do you have a sick employee and are you unsure about the steps to take? Please feel free to contact our employment lawyers.
