District Court Gelderland, 2 October 2024, ECLI:NL:RBGEL:2024:6704
In this case, a dental practice (the employer) held its occupational health service liable for errors in the reintegration of a sick employee. The employer had been refused permission by the UWV to dismiss the employee once the statutory waiting period had ended.
Facts
The employer engaged an occupational health service to guide and support the employee’s reintegration. After two years of illness, the employee applied for a WIA disability benefit. The UWV ruled that the employer had made insufficient reintegration efforts and imposed a wage-continuation sanction, as a result of which it refused permission to terminate the employment contract.
The employer then filed a request for dissolution with the subdistrict court. This request was granted, but the employer was ordered to pay the employee fair compensation of €100,000. The court ruled that the employer had acted in a seriously culpable manner, consisting of sexual harassment, wrongfully and unilaterally demoting the employee to a lower position, and inadequately complying with its reintegration obligations. These circumstances resulted in a disturbed working relationship, such that the employer could not reasonably be required to continue the employment contract.
Ruling
A year later, the employer held the occupational health service liable, arguing that the UWV’s refusal to grant the dismissal permit had been based on an incorrect assessment by the company doctor, and that the occupational health service had fallen short in guiding the employee’s absence. The employer claimed damages from the occupational health service consisting of one third of the fair compensation and just over €56,000 in wages it claimed had been wrongly paid to the employee.
The occupational health service defended itself by arguing that the employer had breached its duty to complain in time, and had therefore filed its claim too late. This caused serious prejudice to the occupational health service, as it should have been involved at an earlier stage to limit any damage and raise any objections.
Conclusion
The occupational health service’s defence succeeded. By failing to complain in time, the employer had forfeited its right to damages for an attributable failure to perform the agreement. As a result, the substance of the employer’s complaints was never assessed. The court dismissed the employer’s claims.
As an employer, you remain responsible for the advice you receive from your own occupational health service, even if that advice turns out to be wrong. Under employment law, you cannot hide behind that advice towards your employee. Do you have questions about working with your occupational health service? Our employment lawyers are happy to help.
Click here for the full ruling (in Dutch).
